GIFT   OF 
JANE  KoSATHER 


THE  POLITICAL  AND  ECONOMIC 
DOCTRINES  OF  JOHN  MARSHALL 


'1ST' 


Frontispiece 


The  Political  and  Economic 
Doctrines  of  John  Marshall 

Who  for  Thirty-Four  Years  Was  Chief 
Justice  of  the  United  States.  And  Also 
His  Letters,  Speeches,  and  Hitherto 
Unpublished  and  Uncollected  Writings 


BY 


JOHN  EDWARD  OSTER,  A.M.  LL.B. 


*.  .* »  •*  .*  v        • .  • 


NEW  YORK 

THE  NEALE  PUBLISHING  COMPANY 
1914 


Copyright,  1914,  by 
THE  NEALE  PUBLISHING  COMPANY 


VAIL-BALLOU    COMPANY 
BINGHAMTON  AND  NEW  YORK 


This  book  is  respectfully  dedicated  to 
OHIO  NORTHERN  UNIVERSITY 

To  the  Faculty  and  President  in  grateful  acknowledg 
ment  of  the  valued  encouragement  received  from  them, 
who,  by  their  teaching,  caused  me  to  become  a  lover  of 
learning,  and  do  research  work  in  Political  Science. 


898969 


CONTENTS 

PAGE 

PREFACE 7 

CHAPTER  I 
IN  MARSHALL'S  DAY  NEW  PROBLEMS  WERE  TO  BE  SOLVED     .     .     .     .     n 

CHAPTER  II 

THE  LETTERS  OF  JOHN  MARSHALL. —  To  WASHINGTON  —  JUDGE  STORY 
MONROE  —  MADISON  —  JEFFERSON  —  GOVERNOR  OF  VIRGINIA  — 
HENRY  CLAY  —  HENRY  LEE — DANIEL  WEBSTER  —  JOHN  ADAMS  — 
ALBERT  GALLATIN  —  JOSIAH  QUINCY  —  R.  KING  —  EDWARD 
EVERETT  —  RUFUS  KING  —  DUDLEY  CHASE  —  COLONEL  PICKERING  .  20 

CHAPTER  III 

LETTERS  TO  MARSHALL  —  FROM  WASHINGTON  —  FROM  THOMAS  JEFFER 
SON —  FROM  JOHN  AMBLER  —  FROM  GOVERNOR  ST.  CLAIR  .  .  .  193 

CHAPTER  IV 

MISCELLANEOUS  WRITINGS  —  WILL — EULOGY  UPON  His  WIFE — COM 
MUNICATION  ON  WESTERN  RESERVE  .  .  • 197 

CHAPTER  V 

THE  SPEECHES  OF  JOHN  MARSHALL — SPEECH  ON  THE  CASE  OF 
THOMAS  NASH  —  EXPEDIENCY  OF  DIRECT  TAXATION  —  SPEECH  IN 
VIRGINIA  CONVENTION,  IST  AND  20  SECS.  OF  30  ARTICLE  OF  CONST. 
UNDER  CONSIDERATION  —  ON  DEATH  OF  WASHINGTON  ....  225 

CHAPTER  VI 

THE  KERNEL  OF  MARSHALL'S  DECISIONS  —  THE  HOLDINGS  THAT  MADE  """""' 
HIM  THE  EXPOUNDER  OF  THE  CONSTITUTION  —  MARBURY  V.  MADI 
SON 280 

CHAPTER  VII 

THE  DEATH  OF  CHIEF  JUSTICE  MARSHALL  —  DIARY  OF  JOHN  QUINCY 
ADAMS 348 

BIBLIOGRAPHY 350 

INDEX 365 


c. 


PREFACE 

BY  common  consent  the  most  notable  and  one  of  the  most 
statesmanlike  figures  in  our  whole  judicial  history  is  that  of 
John  Marshall.  No  other  name  is  comparable  with  his  in  fame 
or  honor  in  this  singular  field  of  statesmanlike  judicial  con 
trol, —  a  field  of  our  own  marking  out  and  creation,  a  states 
manship  peculiar  to  our  own  annals.  Marshall  may  be  said  to 
have  created  for  us  the  principles  of  interpretation  that  have 
governed  our  national  development.  He  created  them  like  a 
great  lawyer,  master  of  the  fundamental  conceptions  that  have 
enlightened  all  great  lawyers  in  the  administration  of  law  and 
have  made  it  seem  in  their  hands  a  system  of  life,  not  a  mere 
body  of  technical  rules ;  he  created  them  also  like  a  great  states 
man  who  sees  his  way  as  clearly  without  precedent  as  with  it  to 
those  renderings  of  charter  and  statute  that  will  vivify  their 
spirit  and  enlarge  their  letter  without  straining  a  single  tissue 
of  the  vital  stuff  of  which  they  are  made. 

A  thoughtful  English  judge  has  distinguished  between  those 
extensions  of  the  meaning  of  law  by  interpretation  that  are  the 
product  of  insight  and  conceived  in  the  spirit  of  the  law  itself 
and  those  that  are  the  product  of  sheer  will,  of  the  mere  de 
termination  that  the  law  shall  mean  what  it  is  convenient  to 
have  it  mean.  Marshall's  interpretations  were  the  products 
of  insight.  His  learning  was  the  learning  of  the  seer,  saturated 
with  the  spirit  of  the  law,  instinct  with  its  principle  of  growth. 
No  other  method,  no  other  principle,  has  legitimate  place  in  a 
system  that  depends  for  its  very  life  upon  its  integrity,  upon 
the  candor  and  good  conscience  of  its  processes,  upon  keeping 
faith  with  its  standards  and  its  immemorial  promises.1 

Our  courts  have  stood  the  test,  chiefly  because  John  Marshall 
presided  over  their  processes  during  the  formative  period  of 
our  national  life.  He  was  of  the  school  and  temper  of  Wash 
ington.  He  read  constitutions  in  search  of  their  spirit  and 
purpose  and  understood  them  in  the  light  of  the  conceptions 
under  the  influence  of  which  they  were  framed.  He  saw  in 

1  Woodrow  Wilson,   "  Constitutional  Government  in   U.   S.,"  Columbia 
Lectures,  1908,  p.  158. 

7 


8  PREFACE 

them  not  mere  negations  of  power,  but  grants  of  power,  and  he 
reasoned  from  out  the  large  political  experience  of  the  race  as 
to  what  those  grants  meant,  what  they  were  intended  to  accom 
plish,  not  as  a  pedant  but  as  a  statesman ;  and  every  generation 
of  statesmen  since  his  day  have  recognized  the  fact  that  it  was 
he  more  than  the  men  in  Congress  or  in  the  President's  chair 
who  gave  to  our  federal  government  its  scope  and  power. 
The  greatest  statesmen  are  always  those  who  attempt  their 
tasks  with  imagination,  with  a  large  vision  of  things  to  come, 
but  with  the  conscience  of  the  lawyer  also,  the  knowledge  that 
the  law  must  be  built,  not  wrested,  to  their  use  and  purpose. 
And  so,  whether  by  force  of  circumstance  or  by  deliberate  de 
sign,  we  have  married  legislation  with  adjudication  and  look 
for  statesmanship  in  our  courts.2  Marshall  fulfilled  all  re 
quirements  better  perhaps  than  any  other  man  of  his  day  could 
have  done. 

Professor  Thayer,  of  Harvard,  in  his  book  on  Marshall, 
says :  "  No  systematic  attempt  seems  ever  to  have  been  made 
to  collect  Marshall's  letters.  It  should  be  done.  Only  a  few 
of  his  family  letters  have  yet  found  their  way  into  print." 
Professor  Beard  in  his  book,  "  The  Supreme  Court  and  the 
Constitution,"  says :  "  How  are  we  to  know  what  was  the 
intention  of  the  f ramers  of  the  constitution  ?  The  only  method 
is  to  make  an  exhaustive  search  in  the  documents  of  the  Con 
vention,  and  in  the  writings,  speeches,  papers,  and  recorded 
activities  of  its  members.  New  material,  printed  or  in  manu 
script,  may  be  produced  at  any  moment.  This  essay  there 
fore  makes  no  claim  to  finality.  It  is  designed  to  throw  light 
on  the  subject  and  to  suggest  ways  in  which  more  light  may 
be  obtained."  3  More  light  is  what  is  needed.  John  Marshall, 
more  than  any  other  man,  knew  what  the  intention  of  the 
f  ramers  of  the  Constitution  was,  therefore  his  point  of  view 
is  important.  His  decisions  and  his  letters  and  his  speeches 
will  show  that  intention  to  a  greater  degree  than  any  other 
source.  In  this  volume  I  have  endeavored  to  give  the  kernel 
of  his  decisions,  all  the  letters  that  could  be  obtained,  and  his 
most  important  speeches. 

For  suggestions  from  time  to  time  I  cheerfully  acknowledge 

2  Wilson,  "  Constitutional  Government  in  U.  S.,"  p.  168. 

3  Pages  15-16. 


PREFACE  9 

my  obligations  to  Professor  Charles  A.  Beard,  who  also  first 
emphasized  the  importance  of  Marshall's  letters;  to  Professor 
Frank  Goodnow,  of  the  Columbia  Law  School ;  to  John  Bas- 
sett  Moore,  Professor  of  Law,  Columbia  Law  School;  to 
William  D.  Guthrie,  Professor  of  Constitutional  Law,  Col 
umbia  Law  School,  who  also  gave  me  valuable  books  on  Con- 
stutional  Decisions,  and  to  Professor  William  Dunning,  Col 
umbia  University. 

I  give  my  thanks  to  the  Librarian  of  the  Congressional  Li 
brary  at  Washington,  and  especially  to  the  Superintendent  of 
Documents  in  the  Manuscript  Division  for  his  kindness  in 
giving  me  free  access  to  the  archives  and  files  of  manuscript 
letters;  to  Professor  Mills,  Librarian  of  the  Ohio  State  His 
torical  and  Archaeological  Society  Library;  to  the  Librarian 
of  Ohio  State  Library;  to  the  attendants  of  the  Toledo  Public 
Library;  to  the  Librarian  of  the  New  York  Public  Library; 
to  the  Librarian  of  the  Columbia  University  Library,  and  es 
pecially  to  Mr.  Erb  and  his  efficient  and  courteous  assistants; 
and  to  the  Librarian  of  the  Columbia  Law  School. 

I  have  also  received  valuable  aid  from  Arthur  Murnen,  Fae 
John,  John  A.  McGeever, —  of  the  Kentucky  and  Connecti 
cut  bars, —  and  Mae  C.  R.  Newshafer,  who  read  copy,  sug 
gested  names  of  persons  who  might  have  or  know  of  letters, 
and  helped  in  the  search  for  letters  written  by  Chief  Justice 
Marshall. 

JOHN  EDWARD  OSTER. 

Columbia  University,  New  York  City, 
June,  1914. 


CHAPTER  I 

IN  MARSHALL'S  DAY  NEW  PROBLEMS  WERE  TO  BE  SOLVED 

MARSHALL  AN  ACKNOWLEDGED  LEADER  OF  THE 
FEDERALISTS 

NOT  only,  in  the  words  of  Chief  Justice  Waite,  "  were  the 
nation,  the  Constitution,  and  the  laws  in  their  infancy,"  but 
a  brand-new  problem  of  political  science  was  to  be  solved, — 
that  is,  whether  or  not  it  was  possible  to  work  successfully  a 
scheme  contemplating  the  contemporaneous  supremacy  in 
each  of  thirteen  independent  commonwealths  of  two  govern 
ments,  distinct  and  separate  in  their  action,  yet  commanding 
with  equal  authority  the  obedience  of  the  same  people,  so 
that  each  in  its  allotted  sphere  should  perform  its  functions 
without  impediment  to  or  collision  with  the  other.1  Patrick 
Henry,  in  the  Virginia  Convention,  denounced  "  these  two 
coordinate,  interfering,  unlimited  powers  of  harassing  the 
community  "  as  "  unexampled,  unprecedented  in  history,  the 
visionary  projects  of  modern  politicians  "  and  "  a  political  sole 
cism."  For  other  gloomy  forebodings  and  disastrous  predic 
tions  by  Patrick  Henry  see  Elliot's  Debates  pp.  47-51,  58,  156, 
325-328,  436,  546,  549. 

This  problem  has  been  completely  solved  for  us  by  the 
experiences  of  a  century.  It  has  been  so  completely  solved 
that  few  Americans  realize  what  Professor  Bryce  calls  "  that 
immense  complexity  which  startles  and  at  first  bewilders  a  stu 
dent  of  American  institutions."  The  solution  depended  in  a 
large  measure  upon  the  interpretation  and  enforcement  of  a 
written  constitution  which, —  as  Mr.  Webster  said  in  his 
argument,  and  Judge  Marshall  repeated  in  his  decision,  in 
Gibbons  v.  Ogden  (9  Wheaton,  p.  189), —  enumerated  but  did 
not  define  the  powers  that  it  granted;  and  thus  that  scheme 
assigned  to  the  Supreme  Court,  as  a  co-ordinate  department  of 
the  national  government,  a  part  never  before  undertaken  by 
such  a  tribunal.  Even  if  the  Federal  Constitution,  when  pro- 
1  "  Elliot's  Debates,"  Vol.  Ill,  2cl  ed.  1836,  p.  148. 


12  THE  POLITICAL  AND  ECONOMIC 

mitigated  for  adoption,  had  been  accepted  by  all  parties  as 
theoretically  perfect,  and  its  provisions  as  open  to  but  one  con 
struction,  still  a  bitter  and  all  but  fatal  experience  gave  warning 
of  the  dangers  to  be  apprehended  from  the  local  and  State 
jealousies,  the  selfish  interests,  which  were  at  best  conflicting, 
and  which  even  during  the  struggle  for  independence  had 
brought  the  government  of  the  Confederation  into  contempt.2 

At  this  time  of  its  adoption  there  was  no  worship  of  the 
Constitution.  This  worship  was  of  a  later  growth.3  Quoting 
John  Quincy  Adams,  Von  Hoist  says,  "  The  historical  fact  is 
that  the  Constitution  had  been  extorted  from  the  grinding 
necessity  of  a  reluctant  people."  Again  he  says : 

"  We  are  compelled  to  say  with  Justice  Story  that  we  ought 
to  wonder,  not  at  the  obstinacy  of  the  struggle  of  1787  and 
1788,  but  at  the  fact  that  despite  everything  the  Constitution 
was  finally  adopted.  The  simple  explanation  of  this  is  that 
it  was  a  struggle  for  existence,  a  struggle  for  the  existence  of 
the  United  States." 

The  fierce  though  unsuccessful  opposition  to  the  adoption  of 
the  Constitution,  notably  in  the  Massachusetts,  New  York,  and 
Virginia  Conventions,  shows  what  the  frame  of  mind  of  the 
people  was  at  that  time.  John  Marshall, —  then  thirty-three 
years  old,  but  already  a  recognized  leader  of  the  Virginia 
Bar, —  was  an  influential  member  of  the  Virginia  Convention. 

Marshall's  speeches  in  the  Virginia  Convention  in  defense 
of  its  provisions  concerning  taxation,  the  militia,  and  the 
judiciary  were  very  strong  and  able  and  carried  much  weight.4 

With  the  ratification  of  the  Constitution  on  June  21,  1788, 
by  New  Hampshire,  the  ninth  State,  followed  by  Virginia  on 
June  25,  and  New  York  on  July  26,  the  Union  under  the  Con 
stitution  became  an  accomplished  fact.  It  was  carried  by 
dangerously  narrow  majorities, —  in  the  New  York  Conven 
tion  by  only  30  votes  to  27 ;  in  that  of  Virginia  by  only  89  to  79, 
and  in  that  of  Massachusetts  by  187  against  i68.5  All  evi 
dence  points  to  the  fact  that  if  it  had  been  submitted  to  the  vote 
of  the  people  it  would  have  without  a  doubt  received  a  death 
blow.  It  would  have  been  rejected  by  the  people  if  left  to 

2  Story's  "  Comm.  I  on  Const,  of  U.  S."  sec.  252-254. 

3  Von   Hoist's   "  Constitutional  History  of  the  United   States,"  Vol.    I, 
pp.  68-75. 

*3  Elliot's  "Debates,"  2d  edition,  1836,  pp.  222,  419,  551. 

5  Fiske's  "  Critical  Period  of  American  History,"  pp.  331,  338,  344. 


DOCTRINES  OF  JOHN  MARSHALL  13 

popular  vote,  and  by  the  conventions  if  a  few  great  statesmen 
had  not  put  forth  their  best  efforts  in  defending  it.6 

John  Marshall  never  sought  public  station,  but  often  declined 
it.  His  great  popularity  repeatedly  charged  him  with  its 
duties.  Early  in  1782  he  was  elected  to  the  Legislature,  in 
1783  he  was  chosen  a  member  of  the  State  Executive  Council, 
and  he  was  again  elected  to  the  Legislature  in  1784,  in  1787, 
from  1788  to  1792,  and  without  his  knowledge  and  against  his 
will  in  1795.  To  this  period,  Mr.  Justice  Story  tells  us,  is  to 
be  referred  the  development  of  the  political  opinions  and 
principles  that  governed  his  subsequent  life.7  He  himself 
sums  this  up  in  a  letter  found  on  another  page  of  this  volume, 
in  which  he  says :  "  The  general  tendency  of  State  politics 
convinced  me  that  no  safe  and  permanent  remedy  could  be 
found  but  in  a  more  efficient  and  better  organized  government," 
and  again :  '  The  questions  which  were  perpetually  recurring 
in  the  State  Legislatures  .  .  .  which  proved  that  everything 
was  afloat,  and  that  we  had  no  safe  anchorage  ground,  gave  a 
high  value  in  my  estimation  to  that  article  in  the  Constitution 
which  provides  restrictions  on  the  States." 

In  the  Virginia  Convention  Patrick  Henry,  at  the  height  of 
his  fame,  led  the  attack  upon  the  Constitution,  seconded  by 
Grayson  and  Monroe  and  others  advocating  State  sovereignty, 
and  opposed  by  Marshall,  Madison,  Pendleton,  and  other  noted 
men.  The  issue  was  in  doubt  during  twenty-five  days  of  keen 
and  heated  debate. 

To  Henry's  passionate  denunciations  of  the  new  "  consoli 
dated  government,"  as  based  on  principles  "  extremely  per 
nicious,  impolitic,  and  dangerous,"  by  which  "  all  pretensions 
to  human  rights  and  privileges  are  rendered  insecure,  if  not 
lost,"  and  to  his  strenuous  objections  to  many  of  its  provisions,8 
Marshall  replied  in  three  speeches,  defending  the  provisions 
of  the  Constitution  concerning  taxation,  the  militia,  and  the 
judiciary,9  This  drew  from  Henry  the  tribute  of  his  "  highest 
veneration  and  respect  "  and  an  acknowledgment  of  his  "  can 
dor  on  all  occasions."  10 

6  Bryce,  "  The  American  Commonwealth,"  Vol.  I,  p.  223. 

7  "  Discourse,"  etc.,  Story's  "  Miscellaneous  Writings,"  pp.  649,  651,  656- 
8,  662-7. 

8  Elliot's  "Debates,"  Vol.  Ill,  p.  44. 

9  Elliot's  "  Debates,"  Vol.  Ill,  pp.  222,  419,  551. 

10  Elliot's  "  Debates,"  Vol.  Ill,  p.  578. 


I4  THE  POLITICAL  AND  ECONOMIC 

In  the  debate  of  the  Virginia  Convention  we  cannot  help  but 
note  Marshall's  view  that  under  the  Constitution,  as  proposed, 
a  State  could  not  be  sued  by  a  citizen  of  another  State.  He 
said :  "  It  is  not  rational  to  suppose  that  the  sovereign  power 
shall  be  dragged  before  a  court.  The  intent  is  to  enable  States 
to  recover  claims  of  individuals  residing  in  other  States."  n 
\In  these  debates  it  is  also  very  interesting  to  notice  his  em- 
Iphatic  assertions  of  the  right  and  duty  of  the  Federal  courts 
to  declare  void  a  legislative  act  not  warranted  by  the  Consti 
tution. 

"If  they  were  to  make  a  law  not  warranted  by  any  of  the 

i  powers  enumerated,  it  would  be  considered  by  the  judges  as 

an  infringement  of  the  Constitution  which  they  are  to  guard. 

They  would  not  consider  such  a  law  as  coming  under  their 

jurisdiction.     They  would  declare  it  void."      ("  Debates,"  p. 

1553.) 

|  During  the  political  conflicts  that  followed  the  adoption  of 
the  Constitution  the  personal  influence,  the  courage,  and  the 
great  ability  and  talents  of  Marshall  became  very  conspicuous. 
The  Anti-Federalists,  under  the  leadership  of  Patrick  Henry 
and  his  friends,  though  almost  defeated  in  the  Convention,  had 
full  control  of  the  politics  of  Virginia;  and,  notwithstanding 
the  veneration  felt  for  Washington  and  his  unanimous  elec 
tion  to  the  Presidency,  in  no  state  in  the  Union  was  his  ad 
ministration  more  harshly  criticised  than  it  was  in  Virginia. 
He  was  censured  in  the  Legislature  as  well  as  by  the  Demo 
cratic  Societies,  which,  modeled  after  the  fashion  of  the 
French  Jacobin  Clubs,  started  up  all  over  the  country.  This 
was  in  the  year  1783. 

Marshall  did  his  best  to  withdraw  from  public  life.  Never 
theless,  regardless  of  his  earnest  desire,  he  soon  found  him 
self  an  acknowledged  leader  of  the  Federalists,  and  prominent 
in  the  discussion  of  national  affairs.  At  that  time  there  was 
an  abundance  of  exciting  material  on  hand.  The  news  of 
the  war  between  England  and  France  in  1793,  promptly  re 
sponded  to  by  Washington's  proclamation  of  neutrality,  was 
contemporaneous  with  the  arrival  of  the  new  French  Min 
ister,  Genet,  whose  audacious  intrigues  quickly  bore  fruit  in 
all  kinds  of  international  complications.  The  proclamation 
was  strenuously  denounced,  both  as  an  ungrateful  return  for 
11  Elliot's  "Debates,"  III,  p.  555. 


DOCTRINES  OF  JOHN  MARSHALL  15 

the  assistance  of  France  during  our  own  Revolution,  and  as 
an  unconstitutional  exercise  of  power  by  the  President;  and 
the  violence  of  partisan  attacks  upon  the  administration  was 
exceeded  only  by  the  virulence  of  the  libels  that  charged  Wash 
ington  with  hatching  out  a  plot  by  which  he  could  make  him 
self  a  King.12 

•  At  that  time  John  Marshall  in  a  bold  manner  defended  the 
proclamation,  though  because  of  his  doing  so  he  was  denounced 
as  an  aristocrat  and  an  arch-enemy  of  republican  principles. 

However,  at  a  meeting  in  Richmond  he  was  successful  in 
carrying  resolutions  that  approved  the  proclamation.  The 
ratification  of  Jay's  treaty  in  1795  added  much  fuel  to  the 
flame.  Bitterly  denounced  by  the  Republicans  everywhere  on 
account  of  its  commercial  features  as  well  as  its  alleged  un- 
constitutionality,  it  was  so  odious  in  Virginia  that  the  friends 
of  Marshall, —  who,  against  his  own  remonstrance,  had  again 
elected  him  to  the  Legislature, —  urged  him  for  the  sake  of 
his  own  influence,  if  not  for  his  personal  safety,  to  take  no 
part  in  the  Legislative  debates  on  that  subject.13 

Resolutions  had  been  adopted  at  a  public  meeting  in  Rich 
mond,  declaring  the  treaty  "  insulting  to  the  dignity,  injurious 
to  the  interests,  dangerous  to  the  security,  and  repugnant  to 
the  Constitution  of  the  United  States."  John  Marshall,  with 
characteristic  courage,  determined,  as  he  afterward  wrote,  "  to 
make  the  experiment,  however  hazardous  it  might  be."  "  A 
meeting  was  called,"  he  continues,  "  which  was  more  numer 
ous  than  I  had  ever  seen  at  this  place,  and  after  a  very  ar 
dent  and  zealous  discussion  which  consumed  the  day,  a  de 
cided  majority  declared  in  favor  of  a  resolution  that  the  wel 
fare  and  honor  of  the  United  States  required  us  to  give  full 
effect  to  the  treaty  negotiated  with  Britain."  Marshall  even 
compelled  his  opponents  in  the  Legislature  to  abandon  com 
pletely  their  objections  to  the  constitutionality  of  this  treaty. 
His  argument  on  this  occasion  was  of  great  power, —  an  argu 
ment  that  was  admitted  on  all  sides  to  be  conclusive,  and  "  the 
fame  of  which  spread  through  the  Union,  enhancing  the  esti 
mate  of  his"  character  even  with  his  political  enemies."  14 

12 "  McMaster's  History,"  Vol.  II,  pp.  96-107;   109-112. 

13  "  McMaster's  History,"  Vol.  II,  pp.  221-230,  and  Story's  "  Discourse," 
pp.  667,  668. 

14  Story's  "  Discourse,"  p.  668. 


16  THE  POLITICAL  AND  ECONOMIC 

John  Quincy  Adams  once  said  of  his  father  that,  if  he  had 
done  nothing  else  to  deserve  the  approbation  oi  his  country 
and  posterity,  he  might  proudly  claim  it  for  the  single  act  of 
having  made  John  Marshall  Chief  Justice  of  the  United  States ; 
and,  surely,  Marshall  stands  out  pre-eminently  among  the 
many  noble  legal  minds  that  have  graced  the  Supreme  Court  as 
the  greatest  of  them  all.  "  He  was  born,"  said  William 
Pinckney,  "  to  be  the  Chief  Justice  of  any  country  into  which 
Providence  should  have  cast  him." 

Of  the  work  of  Marshall  upon  the  bench  many  volumes 
might  be  written ;  but  his  decisions  need  no  encomium ;  they 
speak  for  themselves.  The  Hon.  E.  T.  Phelps,  in  an  address 
delivered  before  the  American  Bar  Association,  fittingly  says 
of  the  judgments  of  John  Marshall :  "  Time  has  demon 
strated  their  wisdom.  They  have  remained  unchanged,  un 
questioned,  unchallenged.  All  the  subsequent  labors  of  that 
high  tribunal  on  the  subject  of  constitutional  law  have  been 
founded  on,  and  have  at  least  professed  and  attempted  to  fol 
low,  them.  There  they  remain.  They  will  stand  as  long  as 
the  Constitution  stands ;  and  if  that  should  perish,  they  would 
still  remain  to  display  to  the  world  the  principles  upon  which 
it  rose,  and  by  the  disregard  of  which  it  fell." 

.    THE    RELATIONSHIP    BETWEEN    JEFFERSON    AND    MARSHALL 

An  article  written  by  the  Hon.  William  A.  Maury,  formerly 
Assistant  Attorney-General  of  the  United  States,  shows  that 
Jefferson  and  Marshall  were  related.  In  this  article  Mr. 
Maury  says : 

"  John  Marshall,  who  solidified  the  Union ;  and  Thomas 
Jefferson,  who  headed  the  reactionary  movement  against  the 
Constitution  which  set  in  so  soon  after  its  adoption  and  fi 
nally  culminated  in  the  Civil  War,  and  Robert  E.  Lee,  who 
drew  his  sword  to  force  to  their  logical  result  the  teachings  of 
Jefferson's  pen,  were  all  three  descended  from  Col.  William 
Randolph  of  Turkey  Island,  the  first  of  the  name  who  emi 
grated  to  Virginia,  where  he  became  the  progenitor  *  of  a 
widespread  and  numerous  race,  embracing  the  most  wealthy 
families  and  many  of  the  most  distinguished  names  in  Vir 
ginia  history.'  Marshall's  mother,  Mary  Keith;  Jefferson's 
mother,  Jane  Randolph ;  and  Lee's  grandmother,  Mary  Bland, 


DOCTRINES  OF  JOHN  MARSHALL  17 

were  all  three  granddaughters  of  this  William  Randolph." 
The  relationship  is  clearly  illustrated  in  the  following  dia 
gram  that  is  given  by  Mr.  Maury : 

Col.    William   Randolph,   of   Yorkshire,    England,   and   "Turkey   Island," 

Virginia,  married  Mary,  daughter  of  Henry  and  Catherine  Isham,  of 

Bermuda  Hundred,  Virginia, 


1 

Thomas,  2d  son 
m.  Fleming. 

Mary,  3d  child 
m.  Wm.  Keith. 

Mary  Randolph  Keith 
m.  Col.  Thomas  Mar 
shall. 

John  Marshall. 

Isham,  3d  son 
m.  Jane  Randolph, 

Jane  Raitdolph,  4th 
child 
m.  Peter  Jefferson. 

Thomas   Jefferson. 

Elizabeth,  gth  child 
m.   Richard  Bland. 
1 
Mary  Bland 
m.  Henry  Lee 

Henry  Lee 
m.  Lucy  Grimes 
1 
Henry  Lee 
m.  Anne  Hill  Carter. 

Robert  E.  Lee. 

If  John  Marshall  had  lived  about  fifty  years  later  when 
equal  suffrage  for  women  was  first  being  discussed,  he  no 
doubt  would  have  been  in  favor  of  it,  and  probably  he  would 
have  been  one  of  the  champions  to  fight  for  the  cause.  Many 
of  his  writings  show  that  he  had  great  regard  for  women  and 
their  rights,  and  if  they  took  part  in  any  public  event  he  was 
sure  in  some  way  to  express  his  appreciation  of  whatever  they 
did. 

General  Washington,  while  on  his  way  from  Mount  Vernon 
to  New  York  to  take  upon  himself  the  charge  of  the  Govern 
ment  as  President  of  the  United  States,  on  the  2ist  of  April, 
1789,  stopped  at  Trenton,  where  a  reception  was  given  to  him. 
In  describing  that  entertainment  Chief  Justice  Marshall  wrote 
as  follows: 

"  At  Trenton  he  was  welcomed  in  a  manner  as  new  as  it 
was  pleasing.  In  addition  to  the  usual  demonstrations  of  re 
spect  and  attachment,  which  were  given  by  the  discharge  of 
cannon,  by  military  corps,  and  by  private  persons  of  distinc 
tion,  the  gentler  sex  prepared,  in  their  own  taste,  a  tribute  of 
applause  indicative  of  the  grateful  recollection  in  which  they 
held  their  deliverance  twelve  years  before  from  a  formidable 
enemy.  On  the  bridge  over  the  creek,  which  passes  through 
the  town,  was  erected  a  triumphal  arch,  highly  ornamented 


18  THE  POLITICAL  AND  ECONOMIC 

with  laurels  and  flowers,  and  supported  by  thirteen  pillars, 
each  entwined  with  wreaths  of  evergreens.  On  the  front  arch 
was  incribed  in  large  gilt  letters, 


"  '  THE  DEFENDER  OF  THE  MOTHERS  WILL  BE  THE  PROTECTOR 


"  On  the  center  of  the  arch  above  the  incription  was  a  dome 
or  cupola  of  flowers  and  evergreens,  encircling  the  dates  of 
two  memorable  events,  which  were  peculiarly  interesting  to 
New  Jersey.  The  first  was  the  battle  of  Trenton,  and  the 
second  the  bold  and  judicious  stand  made  by  the  American 
troops  at  the  same  creek,  by  which  the  progress  of  the  British 
army  was  arrested  on  the  evening  preceding  the  battle  of 
Princeton. 

"  At  this  place  he  was  met  by  a  party  of  matrons  leading 
their  daughters  dressed  in  white,  who  carried  baskets  of  flowers 
in  their  hands,  and  sang  with  exquisite  sweetness  an  ode  of 
two  stanzas  composed  for  the  occasion : 

" '  Welcome,  mighty  chief,  once  more 
Welcome  to  this  grateful  shore; 
Now  no  mercenary  foe 
Aims  again  the  fatal  blow ; 
Aims  at  THEE  the  fatal  blow. 

'  '"Virgins  fair  and  matrons  grave, 

Those  thy  conquering  arms  did  save, 
Build  for  THEE  triumphal  bowers. 
Strew,  ye  fair,  his  way  with  flowers, 
Strew  your  Hero's  way  with  flowers.' " 

The  following  communication  was  made  to  the  ladies  im 
mediately  afterward  in  writing: 

"  General  Washington  cannot  leave  this  place  without  ex 
pressing  his  acknowledgments  to  the  matron  and  young  ladies, 
who  received  him  in  so  novel  and  grateful  a  manner  at  the 
triumphal  arch  in  Trenton,  for  the  exquisite  sensations  he  ex 
perienced  in  that  affecting  moment. 

"  The  astonishing  contrast  between  his  former  and  actual 
situation  at  the  same  spot,  the  elegant  taste  with  which  it  was 
adorned  for  the  present  occasion,  and  the  innocent  appear 
ance  of  the  white-robed  choir,  who  met  him  with  the  gratu- 


DOCTRINES  OF  JOHN  MARSHALL  19 

latory  song,  have  made  such  impressions  on  his  remembrance, 
as,  he  assures  them,  will  never  be  effaced. " 

The  following  lines,  written  but  a  few  months  after  the 
death  of  Chief  Justice  Marshall,  were  intended  as  an  inscrip 
tion  for  a  cenotaph.  They  were  written  by  Judge  Story. 
This  is  perhaps  the  most  generous  and  affecting  tribute  of  that 
devoted  associate,  who  mourned  his  loss,  not  as  a  friend  only, 
but  as  a  brother, —  a  tribute  less  to  be  valued  on  account  of 
any  poetic  beauty  than  as  evidence  of  that  warm  affection 
and  that  undying  and  reverential  admiration  which  Story 
never  ceased  to  entertain  for  Marshall. 

"  To  Marshall  reared  —  the  great,  the  good,  the  wise, 

Born  for  all  ages,  honored  in  all  skies; 
His  was  the  fame  to  mortals  rarely  given, 

Begun  on  earth  but  fixed  in  aim  on  Heaven. 
Genius  and  learning  and  consummate  skill, 

Moulding  each  thought,  obedient  to  will; 
Affections  pure  as  e'er  warmed  human  breast, 

And  love  in  blessing  others  doubly  blest; 
Virtue  unspotted,  uncorrupted  truth, 

Gentle  in  age,  and  beautiful  in  youth. 
These  were  his  bright  possessions.     These  had  power 

To  charm  through  life  and  cheer  his  dying  hour. 
All  these  are  perished?    No!  but  snatched  from  time 

To  bloom  afresh  in  yonder  sphere  sublime. 
Kind  was  the  doom  (the  fruit  was  ripe)  to  die  — 

Mortal  is  clothed  with  immortality." 


*•     CHAPTER  II 

THE    LETTERS    OF    JOHN    MARSHALL 

THE  place  where  each  of  these  letters  was  found,  or  where 
it  is  to  be  seen  in  print,  is  given  except  in  the  cases  of  those 
that  were  copied  from  the  originals  in  the  Archives  of  the 
Congressional  Library.  If  no  reference  is  given  as  to  the 
place  where  the  original,  or  the  copy,  can  be  found,  then  it 
is  in  the  Congressional  Library  at  Washington. 

JOHN  MARSHALL,  ATTORNEY  FOR  S.  B. 
CUNNINGHAM. 

A  document  in  "  The  Calendar  of  Virginia  State  Papers,"  Vol.  VII,  pp. 

IOI-IO2. 

April  8,  1794. 

I  release  two  shillings  per  hundred  on  the  tobacco  for  which 
Samuel  Baron  Cunningham  has  obtained  a  judgment  against 
the  Commonwealth,  if  no  appeal  be  prosecuted  thereon,  but 
if  the  appeal  be  prosecuted,  then  this  release  is  to  be  of  no 
effect. 

JOHN  MARSHALL, 
Att'y  for  S.  B.  Cunningham. 

The  judgment  obtained  by  Samuel  Baron  Cunningham 
against  the  Commonwealth  is  only  exceptionable  in  that  part 
of  it  which  allows  eighteen  shillings  per  centum  for  the  To 
bacco  lost ;  in  every  other  respect  it  appears  to  be  founded  on 
the  Decree  of  Court  of  the  Appeals. 

JAS.  INNES, 
pro  republica. 

LETTER  i  FROM  J.  MARSHALL  TO  JAMES  WOOD, 

LIEUTENANT-GOVERNOR 
Applies  for  Arms  for  Richmond  Militia 

RICHMOND,  April  25,  1794. 

SIR:     I  am  requested  by  several  of  the  militia  officers  of 
i  "  The  Calendar  of  Virginia  State  Papers,"  Vol.  VII,  p.  120. 

20 


DOCTRINES  OF  JOHN  MARSHALL  21 

this  city  to  aid  them  in  an  application  to  the  Executive  for 
arms  for  their  several  companies. 

In  support  of  this  application,  I  beg  leave  to  observe  that 
the  possession  of  arms  conduces  exceedingly  to  the  improve 
ment  of  troops  in  the  usual  evolutions,  and  that  it  is  hoped 
and  believed  that  the  public  could  sustain  neither  inconven 
ience  or  loss  from  placing  muskets  in  the  hands  of  the  militia 
of  this  place,  as  they  can  with  great  ease  be  re-collected  should 
the  occasion  require  it,  and  as  there  is  every  reason  to  believe 
that  they  would  be  kept  safe  and  in  good  order. 

I  have,  &c. 

J.  MARSHALL. 

LETTER 2  OF  J.  MARSHALL  TO  THE  GOVERNOR 

Recommending  Shelter  for  the  Artillery 

RICHMOND,  May  2oth,  1794. 

It  is  stated  to  me  by  Captain  Quarrier  that  the  field  pieces  in 
his  possession  could  be  kept  with  great  convenience  and  safety 
was  he  permitted  to  erect  a  small  house  on  or  near  the  parade 
ground  which  might  protect  them  from  the  injuries  they  would 
be  exposed  to  if  uncovered.  As  the  ground  has  been  fixed 
on  for  the  parade  some  distance  out  of  town  for  general  con 
venience  to  the  citizens,  it  will  be  difficult  to  remove  the  pieces 
on  every  occasion  from  town  to  the  place  of  meeting,  and  it  is 
hoped  that  the  small  expense  (for  it  would  not  exceed  sixty 
dollars)  of  a  house  to  cover  the  pieces  might  be  usefully  in 
curred,  the  more  especially  as  it  might  protect  all  the  artil 
lery  at  this  place. 

I  am,  &c. 

J.  MARSHALL. 

LETTER  FROM  J.  MARSHALL  TO  THE 

GOVERNOR  OF  VIRGINIA 
Relating  to  Arrest  of  the  Ship  Unicorn 

SMITHFIELD,  July  23d,  1794. 

The  troop  reached  this  place  yesterday  morning,  between 
six  &  seven  o'clock.  The  ship  Unicorn  (the  supposed  priva 
teer),  was  in  possession  of  a  company  of  the  Isle  of  Wight 
Militia,  and  the  revenue  cutter  lay  below  her  with  a  detach- 

2  Ibid.,  p.  148. 


22  THE  POLITICAL  AND  ECONOMIC 

ment  of  militia  from  Norfolk,  commanded  by  Capt.  Wood- 
side. 

Every  idea  of  resisting  with  violence  the  execution  of  the 
laws,  seems  to  have  been  abandoned.  Immediately  on  my  ar 
rival,  the  Marshal  made  a  peacable  request  on  Capt.  Sinclair 
to  allow  his  house  to  be  searched  for  arms  supposed  to  be 
contained  in  it,  which  he  did  not  hesitate  to  permit. 

The  search  was  made,  and  thirteen  pieces  of  cannon,  with 
some  ball,  grape  shot,  and  powder  was  found.  There  were 
three  pieces  lying  on  the  shore.  A  fatigue  party  is  now  em 
ployed  in  getting  them  on  board  the  Unicorn,  after  which  the 
cutter  will  conduct  her  to  Bermuda  hundred,  or  to  Brodway. 
I  despatched  a  boat  yesterday  morning,  to  stop  the  vessel 
which  was  proceeding  down  James  River  with  the  companies 
of  artillery  &  Infantry  from  Richmond,  and  directed  their  re 
turn.  I  also  ordered  Capt.  Weisiger  to  return  with  the  in 
fantry  of  Prince  George,  but  as  the  marshal  entertains  some 
apprehensions  of  an  attempt  to  rescue  the  vessel  in  the  river, 
I  thought  it  advisable  to  countermand  the  orders  I  had  given, 
&  direct  Capt.  Weisiger  to  continue  his  march  to  this  place, 
with  a  view  to  his  return  in  the  Unicorn. 

The  situation  both  of  Major  Taylor  &  of  the  Marshal  has 
been  arduous  &  unpleasant.  The  Marshal  has  received  per 
sonal  insult,  and  seems  not  to  have  been  free  from  personal 
danger.  Major  Taylor  has  used  great  and  proper  exertions 
to  complete  the  business  he  was  upon.  He  at  first,  expe 
rienced  great  difficulty  in  procuring  aid  of  any  kind,  but  that 
difficulty  is  now  removed.  Since  the  arrival  of  distant  mil 
itia,  those  of  the  country  are  as  prompt  as  could  be  wished  in 
rendering  any  service  required  from  them.  Indeed,  I  am  dis 
posed  to  believe  that  the  original  difficulty  rested  not  with  the 
men. 

The  privates  (except  those  residing  in  Smithfield)  have 
manifested  no  disaffection  to  the  Government,  or  reluctance 
to  support  the  laws.  But  of  this,  &  of  every  circumstance 
which  has  occurred,  Major  Taylor  &  the  Marshal  have  taken 
memoranda,  &  an  ample  report  will  be  made  to  you  as  soon 
as  they  shall  return  to  Petersburg. 

Captain  Sinclair  declares  that  he  never  designed  to  violate 
the  laws ;  that  the  arms  found  in  the  house  were  not  intended 
for  the  Unicorn,  but  were  purchased  for  a  gentleman  to  the 


DOCTRINES  OF  JOHN  MARSHALL  23 

Southward;  that  the  ball  will  not  fit  the  cannon;  and  that 
though  she  was  originally  designed  for  a  privateer,  the  in 
tention  was  changed  so  soon  as  the  act  of  Congress  prohibit 
ing  vessels  to  be  armed  in  our  ports  was  known ;  in  proof  of 
which  he  says  that  a  cargo  is  now  engaged  for  her.  These, 
however,  are  subjects  proper  to  be  discussed  in  court. 

I  am  sorry  to  say  that  the  Surveyor  of  the  Port,  who  is 
considered  here  as  the  informer,  seems  to  entertain  great  ap 
prehensions  from  some  of  those  who  considered  themselves 
as  interested  in  this  business.  The  vessel  will,  I  trust,  be  ready 
to  sail  tomorrow,  and  I  shall  then  set  out  with  the  troops  for 
Richmond. 

With  very  much  respect,  I  am,  &c. 

J.  MARSHALL. 

LETTER  *  FROM  J.  MARSHALL  TO  THE 

GOVERNOR  OF  VIRGINIA 
Report  of  Circumstance  Attending  Arrest  of  the  Ship  Unicorn 

RICHMOND,  July  28th,  1794. 

The  troop  of  Cavalry  ordered  to  Smithfield  returned  yes 
terday.  A  longer  time  than  I  had  counted  on  was  necessary 
to  carry  on  board  the  different  articles  libeled,  and  to  move 
the  Unicorn,  and  this  has  produced  a  delay  more  consider 
able  than  was  expected.  She  is  now  on  her  way  to  Bermuda 
Hundred,  guarded  by  Capt.  Weisiger  with  his  company  of 
Light  Infantry,  and  attended  by  the  Revenue  Cutter.  The  ad 
ditional  expense  of/ returning  Capt.  Weisiger's  company  in  the 
Unicorn  is  very  inconsiderable,  and  is  incurred  at  the  request 
of  the  Marshal  who  did  not  think  her  safe  unless  guarded  by 
armed  men.  His  apprehensions  of  a  rescue  seem  to  have 
arisen  in  some  measure  from  reports  prevailing  in  Smithfield, 
and  received  in  a  manner  deserving  some  credit,  tho'  not  so 
as  to  be  testimony,  but  principally  from  the  coldness  and  de 
cision  of  Capt.  Sinclair's  character  from  the  high  degree  of 
irritation  he  manifested,  and  from  the  well  known  total  in 
ability  of  the  Cutter  to  afford  any  effectual  aid  in  case  of  at 
tack.  Captain  Sinclair  declares  his  perfect  submission  to  the 
laws,  and  avers  that  he  had  never  meditated  resistance  to  them. 
There  were,  however,  strong  circumstances  which  might  read- 

3  "  The  Calendar  of  Virginia  State  Papers,"  Vol.  VII,  pp.  234-235, 


24  THE  POLITICAL  AND  ECONOMIC 

ily  induce  an  opinion  that  violence  was  contemplated.  The 
night  after  the  Unicorn  was  seized,  persons  were  heard  for  a 
considerable  time  loading  firearms  in  the  house  of  Captain 
Sinclair.  The  drawing  of  iron  ramrods,  and  ramming  down 
the  charge  were  distinctly  heard.  When  the  search  was  ap 
plied  for,  which  I  mentioned  in  my  former  letter,  he  gave  a 
list  of  the  arms  in  his  possession,  and  among  them  were  fifteen 
muskets.  These  were  found  all  charged.  The  situation  of 
the  house  is  such  as  completely  to  command  the  Deck  of  the 
vessel.  I  do  not  think  that  one  hundred  men  placed  in  the 
vessel  could  have  protected  her  ten  minutes  from  fifteen  placed 
in  the  house,  and  at  this  time,  notwithstanding  the  applica 
tion  to  Colonel  Wells,  and  the  exertions  of  Major  Taylor  and 
the  Marshall  in  Smithfield,  only  a  guard  of  six  or  seven  badly 
armed  men  had  been  raised. 

Captain  Sinclair  says  that  the  only  resistance  he  ever  con 
templated  was  against  an  unauthorized  attempt,  which  he  un 
derstood  was  to  be  made  to  search  his  house.  This  may  be 
the  fact,  but  it  would  scarcely  seem  to  be  so,  since  it  was  un 
known  to  him  that  the  only  search  ever  designed  was  under 
the  warrant  of  a  magistrate,  which  was  applied  for,  but  not 
obtained.  This  circumstance,  added  to  the  evidence  that  the 
vessel  had  been  designed  for  a  privateer,  did,  I  own,  make 
such  an  impression  on  me,  that  I  should,  had  the  Marshall 
requested  it,  increased  the  guard. 

I  had,  while  in  Smithfield,  frequent  conversations  with  indi 
viduals  of  the  Isle  of  Wight.  So  far  as  I  can  judge  of  their 
sentiments  from  their  expressions,  I  am  persuaded  that  they 
feel  no  inconsiderable  degree  of  mortification  that  a  necessity 
should  exist  for  calling  militia  from  a  distance  to  their  neigh 
borhood,  to  protect  from  violence  the  laws  of  our  country, 
and  I  am  persuaded  too  that  this  sentiment  will  so  affect 
the  commanding  officers  as  to  secure  more  activity  from 
them  on  any  future  occasion  than  has  been  exhibited  on 
this. 

They  seem  not  to  have  been  sufficiently  impressed  with  the 
importance  of  maintaining  the  sovereignty  of  the  law;  they 
seem  not  to  have  thought  it  a  duty  of  strong  and  universal 
obligation  to  effect  this  object,  but  I  do  believe  that  a  more 
proper  mode  of  thinking  is  beginning  to  prevail. 

The  militia  on  duty  have  so  acted  as  not  to  have  produced 


DOCTRINES  OF  JOHN  MARSHALL  25 

among  the  citizens,  so  far  as  my  information  extends,  a  single 
murmur. 

The  cheerfulness  with  which  the  troop  submitted  to  labor 
not  usually  imposed  on  Cavalry  does  them  much  honor. 

It  is  with  great  regret  I  mention  an  accident  which  befel 
one  of  the  Prince  George  Infantry.  The  Unicorn  almost 
touched  the  land.  The  company  from  Prince  George  was  on 
board,  and  was  ordered  neither  to  go  on  shore,  or  to  permit 
any  person  from  the  shore  to  come  on  board  the  vessel.  A 
militia  man  who  had  stolen  out  attempted  to  return,  and  on 
being  hailed  by  the  sentinel  attempted  to  rush  by  him  without 
an  answer.  It  was  so  extremely  dark,  that  the  person  could 
not  be  distinguished,  and  the  sentinel  at  the  same  time  pushed 
with  his  bayonet  and  attempted  to  fire.  The  rain  which  had 
fallen  fortunately  prevented  the  discharge  of  the  musket,  but 
a  dangerous  wound  was  received  from  the  Bayonet.  Dr. 
Crawford  of  the  Richmond  troop,  with  great  humanity  dressed 
his  wounds  and  attended  him  through  the  night,  but  could  not 
procure  a  probe  to  ascertain  its  depth. 

I  will  send  to  you  tomorrow  an  account  of  the  monies  ex 
pended  by  me  on  the  expedition. 

With  very  much  respect  &  esteem,  &c. 

J.  MARSHALL. 


OPINION  OF  JOHN  MARSHALL  RELATING  TO  THE  PUR 
CHASE  AND  SALE  OF  LANDS  FOR  ARREARS  OF  TAXES 
AND  DUTIES 

October  I5th,  1794. 

An  agent  appointed  under  the  act  for  the  more  effectual 
collecting  certain  arrears  of  taxes  and  duties,  has  purchased  at 
a  sale  made  in  pursuance  of  that  law,  a  tract  of  land,  which  he 
has  since  sold  for  a  sum  more  considerable  than  he  purchased 
it,  and  it  is  inquired  whether  the  surplus  is  a  gain  to  the  Com 
monwealth,  or  ought  to  be  credited  to  the  sheriff. 

The  Act  of  Assembly  is  by  no  means  explicit.  It  will  admit 
of  either  construction,  and  there  is  some  weight  in  the  argu 
ment  in  favor  of  either. 

The  object  of  the  Commonwealth  is  not  to  speculate,  but 
to  secure  the  collection  of  debts  due  to  itself.  The  purchase 
of  the  agent,  therefore,  may  be  considered  as  a  medium  of  col- 


26  THE  POLITICAL  AND  ECONOMIC 

lection.  This  idea  derives  aid  from  the  clause  directing  the 
agent  to  sell  for  specie  commutables,  or  certificates,  as  the 
arrears  of  taxes  could  or  were  to  be  discharged  by  law.  It 
would  seem  probable  that  a  discretion  would  have  been  left 
with  the  agent  to  have  sold  for  either  article  as  should  be  most 
advantageous  for  the  Commonwealth,  if  the  product  of  the 
sale  was  not  to  be  credited  to  the  sheriff. 

But  on  the  other  hand,  if  the  Sheriff  should  be  credited 
with  the  profits  of  the  sale,  he  ought  to  be  debited  with  the 
loss.  It  is  by  no  means  certain  that  this  would  be  the  judg 
ment  of  the  court,  for  the  act  speaks  of  the  purchase  of  the 
agent  as  an  absolute  purchase,  and  not  a  mere  substitution  of 
himself  in  the  place  of  the  acting  sheriff  for  the  sole  purpose 
of  selling  the  property.  The  act  too  directs  the  amount  of  the 
sale  to  be  endorsed  on  the  execution.  This  forms  an  im 
mediate  credit  to  the  sheriff,  and  the  law  nowhere  authorizes 
a  recharge  of  the  deficiency,  should  one  arise. 

I  am  therefore  of  opinion,  that  the  agent  ought  not  to  credit 
the  Sheriff  for  the  proceeds  of  the  sale  made  by  himself,  and 
I  give  that  opinion  with  the  less  reluctance,  because  should  the 
law  be  otherwise,  the  party  can  immediately  bring  it  before 
the  court,  and  the  Commonwealth  will  be  assured  on  losing 
the  profit  of  this  sale,  that  she  is  secure  against  loss  on  a  future 
occasion  when  the  property  may  sell  for  less  than  the  sum 
given  by  the  agent. 

J.  MARSHALL. 

OPINION*  OF  JOHN  MARSHALL  RELATIVE  TO  FINES  AND 
PENALTIES  UNDER  THE  MILITIA  LAW 

Ques.  ist.  Are  those  delinquent  who  have  failed  to  obey 
the  requisition  lately  made  on  the  Militia,  liable  to  the  fine 
which  is  not  to  exceed  one  year's  pay  by  the  Federal  law,  & 
also  to  ten  dollars  for  not  appearing  at  the  place  of  rendezvous 
by  the  State  law  ? 

2nd.  Are  subjects  or  citizens  of  foreign  powers  liable  to  the 
penalties  from  Militia  laws? 

Ans.  ist.  I  rather  incline  to  the  opinion  that  the  only  fine 
imposed  by  the  Act  of  Congress  ought  to  be  collected. 

The  words  of  our  Act  of  Assembly  are  general,  and  I  have 
4  "  The  Calendar  of  Virginia  State  Papers,"  Vol.  VII,  pp.  347-348. 


DOCTRINES  OF  JOHN  MARSHALL  27 

no  doubt  of  the  powers  of  the  legislature  to  give  additional 
penalties  for  the  breach  of  any  law  of  the  Union,  but  I  rather 
suppose  the  act  of  the  Virginia  Assembly  would  be  construed 
to  apply  to  cases  to  which  the  Congressional  Act  could  not 
apply. 

Ans.  2nd.  I  do  not  think  the  subjects  or  citizens  of  foreign 
powers  liable  to  the  penalties  of  our  Militia  law.  The  Act  of 
Congress  plainly  excludes  them  from  the  Militia,  and  the  Act 
of  Assembly  is  expressed  to  be  enacted  for  the  purpose  of 
carrying  into  effect  the  Militia  system  of  the  Union. 

Oct.  1 6th,  1794.  J.  MARSHALL. 


LETTER  5  FROM  J.  MARSHALL  TO  THE 
GOVERNOR  OF  VIRGINIA 

Sept.  1 3th,  1794. 

I  enclose  you  a  statement  made  by  the  Captain  of  the  Ar 
tillery  company  of  this  town  of  the  articles  required  for  the 
preservation  or  use  of  the  artillery  under  his  care. 

I  have,  &c. 
J.  MARSHALL. 

JOHN  MARSHALL'S  OPINION  •  THAT  THE  COMMISSION  OF 
ELISHA  WHITE,  SHERIFF  OF  HANOVER,  IS  FORFEITED 
FOR  FAILURE  TO  QUALIFY  IN  TIME 

It  is  stated  that  Mr.  White  was  commissioned  as  sheriff  on 
the  1 3th  of  August,  1794. 

That  the  preceeding  Sheriff  continues  in  office  till  the  6th  of 
November  so  that  the  commission  expresses  that  the  power  of 
Mr.  White  is  to  commence  on  the  6th  of  November. 

Several  accidents  prevented  his  giving  bond  and  security 
according  to  law  within  two  months  after  the  date  of  his  com 
mission,  but  in  the  third  month  he  appeared  in  Court  and  of 
fered  to  comply  with  the  law. 

It  is  enquired  whether  under  these  circumstances  the  court 
ought  to  have  received  the  bond,  or  whether  the  executive 
ought  to  proceed  to  make  another  appointment. 

The  case  of  Mr.  White  is  a  hard  one,  but  the  law  seems  to 
leave  no  discretion  with  the  Executive  to  judge  of  those  cir- 

5  Ibid.,  p.  309. 

6  "  The  Calendar  of  Virginia  State  Papers,"  Vol.  VII,  pp.  383-384. 


28  THE  POLITICAL  AND  ECONOMIC 

cumstances  which  shall  dispense  with  a  compliance  with  the 
law.  The  law  admits  of  no  dispensation,  but  positively  re 
quires  the  execution  of  the  bond  within  a  limited  time,  or 
directs  a  new  commission  to  issue.  The  circumstances  then 
do  not  alter  the  case,  but  the  sole  question  seems  to  me  to  be 
whether  the  date  of  the  commission  in  effect  shall  be  con 
sidered  as  the  appointment.  I  think  the  date  of  the  com 
mission  must  be  considered  as  the  appointment  because  every 
thing  to  be  performed  by  the  Executive  is  then  completed. 

J.  MARSHALL. 


THE  OPINION  ^  OF  JOHN  MARSHALL  AS  TO  THE  SALE  OF 
CRAIG'S  LAND 

N. 

December  i8th,  1794. 

The  sale  made  by  the  sheriff,  under  the  execution  which  was 
levied  in  1792,  seems  to  me  to  be  void  in  consequence  of  the 
irregular  procedure  of  that  officer.  He  has  in  nothing  obeyed 
the  law.  If  no  provision  was  made  for  the  case  I  should  have 
no  hesitation  in  advising  the  sale  of  the  land  under  the  sec 
ond  execution,  even  although  a  verdict  of  the  jury  had  been 
rendered  against  the  Commonwealth.  But  the  22nd  section 
of  the  1 6th  chapter  of  the  Acts  of  1792,  which  is  copied  from 
the  Act  of  1787,  directs  the  Auditor,  when  he  shall  suspect 
fraud  in  the  service  of  an  execution,  to  make  report  thereof 
to  the  Executive,  whose  duty  it  shall  be  to  direct  the  Attorney 
of  the  Commonwealth  for  the  district,  county,  or  corporation 
to  file  an  information  thereupon,  and  if  it  shall  appear  that 
the  sale  was  fraudulent,  the  property  shall  not  pass  thereby. 

In  this  case,  the  sale  is  in  my  opinion  not  only  void  through 
its  fraud,  but  its  irregularity  likewise.  Yet  as  the  irregularity 
seems  mingled  with  fraud,  it  may  be  most  proper  to  pursue 
the  precise  mode  pointed  out  by  the  law. 

J.  MARSHALL. 

The  service  of  the  execution  vested  the  property  in  the 
Sheriff,  so  that  it  became  legally  his  for  the  purpose  of  satis 
fying  the  execution.  In  my  opinion  it  passes  to  his  repre 
sentative,  who  may  and  is  bound  to  sell.  The  question  how- 

7  "  The  Calendar  of  Virginia  State  Papers,"  Vol.  VII,  pp.  403-404. 


DOCTRINES  OF  JOHN  MARSHALL  29 

ever  came  on  before  the  last  General  Court,  and  was  not  de 
cided. 

J.  M. 

LETTER^  FROM  JOHN  MARSHALL  TO  THE  GOVERNOR  OF 
VIRGINIA,  RELATING  TO  THE  CONTEST  BETWEEN  THE 
COMMONWEALTH  AND  WILLIAM  FAIRFAX 

March  2nd,  1795. 

The  contest  between  the  Commonwealth  and  Mr.  Fairfax, 
depending  in  the  Court  of  Appeals,  will  come  on  of  course  for 
decision  at  the  next  term.  As  I  am  not  certain  whether  the 
title  of  citizen  purchasers  may  be  considered  as  precisely  the 
same  with  that  of  Mr.  Fairfax,  I  deem  it  incumbent  on  me  as 
the  counsel  of  that  gentleman,  and  hold  it  a  duty  to  those 
purchasers  not  to  be  dispensed  with  to  assist  their  title. 

I  have  therefore  prepared  the  enclosed  bill,  which  I  am  to 
file  in  the  Court  of  Chancery.  As  expedition  seems  to  me  to 
be  unquestionably  the  interest  as  well  of  the  Commonwealth,  as 
of  those  who  think  their  plain  rights  improperly  suspended, 
I  take  the  liberty  to  enclose  the  bill  to  you,  Sir,  for  your 
perusal,  with  a  hope  that  the  officers  of  the  Commonwealth 
will  be  directed  not  to  await  the  process  of  subpoenas  and  at 
tachments,  but  to  bring  the  question  to  a  fair  decision  on  its 
merits  at  the  next  term.  I  should  not  venture,  Sir,  to  make 
this  proposal  if  I  did  not  suppose  it  to  be  the  wish  as  well  as 
interest  of  the  Government  to  have  the  Immediate  use  of  the 
property  in  contest  if  its  title  shall  be  good. 

With,  &c. 

J.  MARSHALL. 

LETTER  ^  FROM  JOHN  MARSHALL  TO  THE  GOVERNOR  OF 
VIRGINIA,  RELATING  TO  CERTAIN  ARTICLES  REQUIRED 
BY  THE  CAPTAIN  OF  ARTILLERY  OF  RICHMOND 

RICHMOND,  Sept.  I3th,  1794. 

I  enclose  you  a  statement  made  by  the  Captain  of  the  Ar 
tillery  company  of  this  town  of  the  articles  required  for  the 
preservation  or  use  of  the  artillery  under  his  care. 

I  have,  &c. 
J.  MARSHALL. 

8  "  The  Calendar  of  Virginia  State  Papers,"  Vol.  VII,  p.  446. 

9  Ibid.,  p.  309. 


30  THE  POLITICAL  AND  ECONOMIC 

MEMORIAL^  TO  THE  GOVERNOR  OF  VIRGINIA,  SIGNED  BY 
JOHN  MARSHALL 

The  memorial   of  the   inhabitants   of   Russell   county  to  His   Excellency 

the  Governor,  and  the  Honorable  Privy  Council  of  Virginia, 

March  the  nth,  Anno  Domini  1795 

We  beg  leave  to  lay  before  your  Honorable  Body,  our 
unhappy  situation,  to  whom  alone  we  have  reasons  to  hope 
for  relief.  The  season  of  the  year  is  now  approaching  in 
which  we  have  reason  to  expect  our  frontiers  to  be  invaded 
by  our  avowed  enemy,  the  Indians.  Since  the  first  settling 
of  our  country  we  have  not  escaped  their  scourge  for  one  year 
without  seeing  our  country  laid  waste,  and  our  helpless  women 
and  children  a  prey  to  their  vindictive  rage.  It  would  be  too 
tedious  for  to  call  your  attention  to  the  number  of  us  who  has 
experienced  that  never  ending  melancholy  sight  of  returning 
to  our  houses  from  our  labours  and  finding  our  families  lying 
breathless,  and  yet  bleeding  from  the  scalping  knives,  until 
our  late  Governor  and  council  wisely,  and  happy  for  us,  cov 
ered  our  frontiers  with  their  troops,  known  by  the  volunteer 
militia,  in  the  spring  of  1792,  and  were  continued  to  Decem 
ber,  1794,  during  which  time  peace,  in  a  great  measure,  blessed 
our  land,  for  by  the  vigilance  of  those  troops,  the  approach  of 
the  enemy  were  generally  discovered,  or  if  any  of  them  by 
any  unavoidable  accident  got  into  the  settlement  undiscovered 
and  accomplished  their  perpetrated  murders,  never  escaped 
without  rendering  life  for  life  and  restoration  of  property. 
Not  hearing  of  the  return  of  those  troops,  and  the  season 
near  at  hand  that  we  may  expect  to  experience  the  unhappy 
misfortunes  too  recent  yet  to  many  of  us,  tho'  prior  to  the 
year  1792,  we  are  induced  to  trouble  your  Board  with  this 
memorial,  hoping  that,  tho'  our  situation  is  not  personally 
known  by  many  of  your  Honorable  Body,  you  will  not  lend  a 
deaf  ear  to  us,  nor  put  our  lives  in  competition  with  money. 
In  a  very  short  time  the  defenceless  position  of  our  frontiers 
will  be  known  to  the  enemy,  on  which  we  have  every  mis 
fortune  to  dread.  Experience  has  taught  us  by  the  many  at 
tempts  that  has  been  made  to  protect  the  frontiers,  that  none 
has  proved  so  effectual  in  procuring  us  peace  as  that  of  the 
volunteer  militia. 

10  This  letter  was  evidently  not  written  by  Mr.  Marshall.     See  "  Vir 
ginia  State  Papers,"  Vol.  VII,  p.  45*- 


DOCTRINES  OF  JOHN  MARSHALL  31 

Hoping  that  your  Excellency  and  the  Honorable  the  Privy 
Council  will  take  us  under  immediate  consideration  and  grant 
a  return  of  the  same  kind  of  troops,  conducted  by  the  same 
officers,  under  whose  protection  we  can  put  confidence,  and 
we  in  duty  bound  will  ever  pray. 

CALEB  FRILEY,  JAMES  DICKERSON,  RICHARD  LONG,  JOHN 
MORTON,  HENRY  DONNIGHE,  OLIVER  HUGHES,  SILAS  DELAN- 
ARY,  WM.  SMITH,  JOHN  MARSHALL,  JOHN  FLANNARY,  AND 
OTHERS. 


LETTER  11  FROM  JOHN  MARSHALL  TO  THE  GOVERNOR  OF 
VIRGINIA,  RELATING  TO  THE  PUBLIC  GUARD 

RICHMOND,  Sept.  23d,  1793. 
SIR: 

Your  letter  of  the  2ist  was  delivered  to  me.  I  have 
written  to  the  officer  of  the  Guard  on  the  subject  it  relates  to. 
I  take  the  liberty  to  state  to  you  in  that,  if  the  Guard  be  con 
tinued,  it  will  be  necessary  to  adopt  some  mode  for  supply 
ing  them  with  rations.  This,  I  believe,  may  be  effected  with 
out  any  other  additional  expense  than  the  price  of  the  pro 
visions,  &  I  am  not  certain  that  the  ration  will  cost  more  than 
the  allowance  to  be  made  for  it.  It  will  also  be  necessary  to 
erect  a  sentry  box  to  protect  the  Sentinel  from  inclement 
weather. 

With  very  much  Respect, 
I  am,  Sir, 

Your   Ob't   Serv't. 

J.  MARSHALL. 

LETTER  12  FROM  JOHN  MARSHALL  TO  THE  GOVERNOR  OF 
VIRGINIA,  ENCLOSING  LETTER  FROM  J.  MITCHELL  EX 
PRESSING  FEARS  OF  NEGRO  INSURRECTION 

RICHMOND,  September  24th,  1793. 
SIR: 

I  take  the  liberty  to  enclose  you  a  letter  I  have  just  re- 

11  "Virginia  State  Papers  (Calendar),"  Vol.  VI,  p.  546. 
™Ibid.,  p.  547. 


32  THE  POLITICAL  AND  ECONOMIC 

ceived  from  Mr.  Mitchell,  &  beg  leave  to  suggest  the  propriety 
of  furnishing  the  Guard  with  cartridges. 

With  very  much  Respect, 

I  am,  Sir,  your  Ob't  Serv't. 

J.  MARSHALL. 

LETTER «  FROM  JOHN  MARSHALL  TO  THE  GOVERNOR  OF 
VIRGINIA,  RELATING  TO  THE  PUBLIC  GUARD 

RICHMOND,  October  5th,  1793. 
SIR: 

I  believe  the  officer  of  the  Guard  might  contract  with  a 
butcher  for  the  rations  necessary  for  the  militia  on  duty.     If 
this  be  approved  of,  enquiry  may  immediately  be  made  to  as 
certain  the  price  at  which  the  ration  is  to  be  procured. 
I  am,  sir,  with  very  much  Respect, 

Your  Ob't  Serv't. 

J.  MARSHALL. 

SIR: 

I  enclose  a  pay-roll  of  the  Company  of  Guards.  The  Ra 
tions  are  not  estimated.  I  will  with  pleasure  give  every  aid 
in  my  power  to  ascertain  their  value.  I  transmit  also  an  ac 
count  of  the  officer  of  the  Guard,  which  he  prays  the  Hon'ble 
Executive  to  direct  the  payment  of. 

I  am,  with  very  much  Respect, 

Your  Ob't  Serv't. 

J.  MARSHALL. 

LETTER  i*  FROM  JOHN  MARSHALL  TO  THE  GOVERNOR  OF 
VIRGINIA,  RELATING  TO  THE  PHOENIX 

October  I5th,  1793. 
SIR: 

You  have  received  the  examination  of  the  Captain  of  the 
Phoenix,  of  a  passenger,  &  of  a  boy  belonging  to  her.  Altho' 
every  person  on  board  seems  healthy,  she  still  appears  to  come 
under  the  description  of  those  vessels  which  ought  to  perform 
quarantine,  &  I  have  some  reasons  for  thinking  so  in  addition 

is  "  The  Calendar  of  Virginia  State  Papers,"  Vol.  VI,  p.  581. 

14  "  The  Calendar  of  Virginia  State  Papers,"  Vol.  VI,  pp.  600-601. 


DOCTRINES  OF  JOHN  MARSHALL  33 

to  those  afforded  by  the  examination  as  transmitted  to  you. 
The  Captain  swore  that  his  vessel  had  not  been  in  the  Dela 
ware  for  ten  weeks  before  she  sailed  from  Mil  ford  to  Wil 
mington,  in  order  to  clear  out  from  Virginia.  The  boy  swore 
she  was  at  Wilmington  about  a  fortnight  before  she  sailed 
from  Milford,  at  which  place  he  left  her,  &  came  on  board  her 
again  at  Milford.  The  Capt.  swore  she  received  her  cargo 
at  Milford,  &  there  is  reason  to  believe  this  may  be  untrue, 
as  the  boy  came  on  board  very  soon  after,  and  found  her 
laden  at  that  time.  The  Captain  too  appeared  very  uneasy 
at  the  examination  of  the  boy,  &  seemed  apprehensive  that 
something  might  escape  him  which  would  be  unfavorable.  He 
said  after  the  affidavit  of  the  boy  that  when  he  said  the  vessel 
had  not  been  in  the  Delaware  for  ten  weeks,  he  misunderstood 
the  question,  &  had  supposed  it  related  to  his  being  at  or  near 
Philadelphia.  One  of  the  crew  was  examined  (not  on  oath) 
by  a  gentleman  of  the  city  (Mr.  Brown)  from  whom  it  ap 
peared  that  the  vessel  had  gone  to  Philadelphia  after  the  boy 
had  left  her  at  Wilmington.  But  admitting  the  statement  of 
the  Captain  to  be  perfectly  true,  it  does  not  appear  at  what 
time  the  young  woman  who  is  dead  was  last  in  Philadelphia,  & 
therefore  she  may  have  had  the  infection  &  have  communi 
cated  it  to  others  on  board,  who  have  not  yet  broke  out  with 
it.  I  am  imformed  too  by  a  Mr.  Denny,  to  whom  I  believe 
the  vessel  was  consigned,  that  he  received  a  letter  by  her  from 
one  of  the  owners,  dated  Philadelphia,  the  26th  of  September, 
but  one  of  the  owners  reside  in  Philadelphia  &  the  other  in 
Wilmington. 

I  am  very  Respectfully, 

Y'r  Ob't  Servant, 

J.  MARSHALL. 

GENERAL  MARSHALL  DECLINES  TO  ACT  FOR  COMMON 
WEALTH  AGAINST  MARTIN'S  HEIRS 
Letter  15  from  Robert  Brooke  to  the  Governor  of  Virginia 

I  am  informed  by  Mr.  Thurston,  Escheator  for  the  County 
of  Frederic,  that  some  time  early  in  the  last  winter,  it  was  ad 
vised  by  the  Executive  that  Gen.  Marshall,  Mr.  Randolph,  and 
myself  should  advise  him  with  respect  to  the  claims  of  the  Com 
monwealth  to  the  real  estate  of  the  late  Bryan  Martin,  which 

15  "  The  Calendar  of  Virginia  State  Papers,"  Vol.  IX,  p.  12. 


34  THE  POLITICAL  AND  ECONOMIC 

was  by  him  devised  for  the  benefit  of  aliens,  and  was  supposed 
upon  that  ground  to  be  escheatable.  I  have  upon  the  informa 
tion  of  Mr.  Thurston  given  him  my  opinion  on  the  subject,  but 
Gen.  Marshall  considers  himself  engaged  for  Martin's  family, 
and  I  believe  Mr.  Randolph  waits  to  hear  from  the  Executive, 
as  he  informed  me  he  had  no  official  communications  on  the 
subject. 

Mr.  Thurston  presses  me  very  much  to  attend  his  inquest, 
which  is  to  be  taken  on  the  i6th  of  the  next  month  at  Winches 
ter,  but  this  I  presume  cannot  be  considered  as  making  a  part 
of  my  ex-officio  duty,  nor  could  I  comply  with  the  request  with 
out  incurring  much  expense  and  occasioning  no  inconsiderable 
inconvenience. 

I  have  the  honor,  &c. 

LETTER^  FROM  JOHN  MARSHALL  TO  THE  GOVERNOR  OF 
VIRGINIA,  INFORMING  HIM  OF  HIS  APPOINTMENT  AS 
SECRETARY  OF  STATE  OF  THE  UNITED  STATES 

ALEXANDRIA,  June  7th,  1800. 

Having  been  appointed  by  the  President  of  the  United  States 
to  the  office  of  Secretary  of  State,  I  am  no  longer  a  representa 
tive  in  Congress  of  the  District  for  which  I  was  elected. 

I  should  have  sooner  notified  this  vacancy  to  you  had  I  been 
certain  that  it  would  have  existed. 

With  very  much  respect,  I  have,  &c. 

J.  MARSHALL. 

LETTER"  FROM  J.  MARSHALL,  CHIEF  JUSTICE  OF  THE 
UNITED  STATES,  TO  THE  GOVERNOR  OF  VIRGINIA,  CON 
CERNING  A  REPORTED  INTENTION  TO  RESCUE  LOG 
WOOD,  CONVICTED  OF  FELONY  IN  COURT  OF  UNITED 
STATES 

RICHMOND,  May  31,  1804. 

The  intelligence  you  gave  me  respecting  an  intention  to 
rescue  Logwood  who  is  convicted  of  felony  in  the  Court  of  the 
United  States  would  certainly  have  induced  me  to  order  a 
guard  for  his  security,  if  the  laws  had  entrusted  the  Judge  with 
that  power. 

is  "The  Calendar  of  Virginia  State  Papers,"  Vol.  IX,  pp.  115-116. 

17  Ibid.,  p.  399- 


DOCTRINES  OF  JOHN  MARSHALL  35 

But  I  find  no  act  of  Congress  to  that  effect,  and  am  therefore 
not  satisfied  that  I  ought  to  exercise  it.  I  think  it  most  ad 
visable  that  an  application  should  be  made  to  the  Executive  of 
the  United  States  on  this  subject,  where  alone  the  requisite 
authority  exists. 

I  am,  &c. 
J.  MARSHALL. 

LETTER  is  FROM  JOHN  MARSHALL  TO  GOVERNOR  ST.  CLAIR 

DEPARTMENT  OF  STATE,  WASHINGTON, 

February  10,  1801. 
SIR:  — 

The  President  of  the  United  States  being  desirous  to  avail 
the  public  of  a  continuance  of  your  services  as  Governor  of  the 
Territory  of  the  United  States  northwest  of  the  Ohio  River,  I 
have  the  pleasure  of  inclosing  your  commission,  and  of  ex 
pressing  the  sentiment  of  esteem  with  which 

I  am,  sir,  etc. 
J.  MARSHALL. 

LETTER  i»  FROM  GOVERNOR  ST.  CLAIR  TO 
JOHN  MARSHALL  20 

CINCINNATI,  August  5,  1800. 
SIR:  — 

I  have  been  honored  with  your  letter  of  the  gth  of  June, 
relating  to  the  Connecticut  Reserve,  and  also  that  of  the  I2th 
of  the  same  month,  covering  the  act  for  dividing  this  Territory. 
In  pursuance  of  the  first,  a  county  has  been  erected,  called 
Trumbull,  comprehending  all  the  land  contained  within  the 
boundaries  by  which  the  reservation  was  made,  when  the 
cession  of  the  claim  of  Connecticut  to  western  lands  generally 
was  accepted  by  Congress. 

In  that  country  an  unfortunate  accident  has  happened 
already,  the  killing  of  two  Indian  men  and  the  wounding  of  two 
children,  O'f  which  I  received  the  account  this  Morning  in  a 
letter  from  Colonel  Hamyramck.  The  inclosed  is  a  copy  of  it. 
I  shall  send  another  to  the  Secretary  of  War.  There  has  been 

18  "  The  St.  Clair  Papers,"  by  Wm.  Henry  Smith,  p.  530. 

19  Ibid.,  p.  497. 

20  Secretary  of  State. 


36  THE  POLITICAL  AND  ECONOMIC 

for  a  considerable  time  past  a  great  restlessness  amongst  the 
Indian  tribes,  and  some  of  them  have  been  committing 
depredations  upon  other  tribes,  and  much  appearances 
that  war  between  them  should  be  enkindled,  while  others 
have  been  stealing  many  horses  from  the  white  people,  which  is 
a  common  prelude  to  hostilities.  I  am  persuaded  that  if  they 
do  not  quarrel  amongst  themselves  it  will  not  be  long  that  they 
will  be  at  peace  with  us ;  to  obviate,  however,  as  much  as  pos 
sible  the  ill  effects  of  this  present  affair,  I  shall  go  to  the  county 
of  Trumbull  immediately,  and  if  the  circumstances  will  justify 
it,  appoint  a  special  court  of  oyer  and  terminer  for  the  trial 
of  the  person  who  is  taken. 

LETTER  21  FROM  CHIEF  JUSTICE  MARSHALL  TO 
JOSIAH  QUINCY 

RICHMOND,  April  23,  1810. 
DEAR  SIR: 

Permit  me  to  request  that  you  will  be  so  good  as  to  charge 
yourself  with  the  enclosed  letter  to  Rev.  Mr.  Eliot. 

The  Federalists  of  the  South  participate  with  their  brethren 
of  the  North  in  the  gloomy  anticipations  which  your  late  elec 
tions  must  inspire.22  The  proceedings  of  the  House  of  Repre 
sentatives  already  demonstrate  the  influence  of  those  elections 
on  the  affairs  of  the  Union. 

I  had  supposed  that  the  late  letter  to  Mr.  Armstrong,  and 
the  late  seizure  of  an  American  vessel,  simply  because  she  was 
an  American,  added  to  previous  burnings,  ransoms,  and  confis 
cations,  would  have  exhausted  to  the  dregs  our  cup  of  servility 
and  degradation ;  but  these  measures  appear  to  make  no  impres 
sion  on  those  to  whom  the  United  States  confide  their  destinies. 
To  what  point  are  we  verging? 

With  very  much  respect  and  esteem,  I  am,  Dear  sir,  your 
obedient 

J.  MARSHALL. 

21 "  Life  of  Josiah  Quincy,"  by  Edmund  Quincy,  p.  204. 

22  At  the  March  elections  Elbridge  Gerry,  the  Democratic  candidate, 
had  been  chosen  Governor  of  Massachusetts,  and  in  New  Hampshire  John 
Langdon  had  defeated  Gov.  Jeremiah  Smith. 

Edmund  Quincy  says:  "The  above  letter  from  Chief  Justice  Marshall 
shows  how  fully  that  eminent  man  shared  in  the  anxieties  and  the  fore 
bodings  of  the  Federal  Party." 


DOCTRINES  OF  JOHN  MARSHALL  37 

LETTER  23  FROM  CHIEF  JUSTICE  MARSHALL  TO 
JOSIAH  QUINCY 

About  the  time  Josiah  Quincy  became  the  President  of  Har 
vard  College,  Nathan  Dane, —  illustrious  for  having  drawn  up 
the  Northwestern  Ordinance,  by  which  slavery  was  excluded 
from  the  regions  northwest  of  the  Ohio  River, —  founded  the 
professorship  of  law  which  bears  his  name,  and  Judge  Story 
was  appointed  the  first  professor.  The  next  year  Mr.  Dane 
advanced  a  sum  of  money  sufficient  to  authorize  the  Harvard 
Corporation  to  erect  the  building  known  as  the  Dane  Law  Col 
lege.  On  the  dedication  of  this  building,  in  October,  1831, 
Mr.  Quincy  delivered  an  address,  which  was  published  and 
widely  distributed.  The  following  letter  from  Chief  Justice 
Marshall  contains  his  testimony  to  the  value  of  such  a  school 
as  one  of  the  departments  of  a  university. 

RICHMOND,  December  10,  1832. 

DEAR  SIR: 

I  am  much  indebted  to  you  for  the  renewed  proof  of  your 
recollection  given  by  sending  me  a  copy  of  your  address  at  the 
dedication  of  Dane  Law  College.  You  have  added  to  my 
respect  for  that  estimable  gentleman,  who  has  bestowed  a 
large  portion  of  the  acquisition  of  a  valuable  life  on  an  institu 
tion  which  promises  to  be  so  advantageous  to  the  profession  he 
had  adopted.  I  had  not  supposed  that  law  was  so  negligently 
studied  in  your  country,  whatever  it  may  be  in  the  South,  as  you 
represented.  But,  however  this  may  be,  you  satisfy  me  entirely 
that  it  may  be  read  with  greatly  increased  benefit  in  an  institu 
tion  connected  with  your  University.  I  can  very  readily  believe 
that  '  to  disincorporate  this  particular  science  from  general 
knowledge  is  one  great  impediment  to  its  advancement.'  The 
vast  influence  which  the  members  of  the  profession  exercise  in 
all  popular  governments,  especially  in  ours,  is  perceived  by  all ; 
and  whatever  tends  to  their  improvement  benefits  the  nation. 
I  am,  with  great  respect  and  esteem,  your  servant, 

J.  MARSHALL. 

23  "  Life  of  Josiah  Quincy,"  by  Edward  Quincy,  p.  443. 


38  THE  POLITICAL  AND  ECONOMIC 

LETTER24  FROM  JOHN  MARSHALL  TO  ALBERT  GALLATIN 

RICHMOND,  January  3,  1790. 
DEAR  SIR: 

I  have  received  yours  of  the  23d  of  December,  and  wish  it 
was  in  my  power  to  answer  satisfactorily  your  question  con 
cerning  our  judiciary  system,  but  I  was  myself  in  the  army 
during  that  period  concerning  the  transactions  of  which  you 
enquire,  and  have  not  since  informed  myself  of  the  reasons 
which  governed  in  making  those  changes  which  took  place 
before  the  establishment  of  that  system  which  I  found  on 
my  coming  to  the  bar.  Under  the  colonial  establishment  the 
judges  of  common  law  were  also  judges  of  chancery;  at  the 
Revolution  these  powers  were  placed  in  different  persons.  I 
have  not  understood  that  there  was  any  considerable  opposition 
to  this  division  of  jurisdiction.  Some  of  the  reasons  leading  to 
it,  I  presume,  were  that  the  same  person  could  not  appropriate 
a  sufficiency  of  time  to  each  court  to  perform  the  public  business 
with  requisite  despatch;  that  the  principles  of  adjudication 
being  different  in  the  two  courts,  it  was  scarcely  to  be  expected 
that  the  eminence  in  each  could  be  attained  by  the  same  man ; 
that  there  was  an  apparent  absurdity  in  seeing  the  same  men 
revise  in  the  characters  of  chancellors  the  judgments  they  had 
themselves  rendered  as  common-law  judges.  There  are,  how 
ever,  many  who  think  that  the  chancery  and  common-law  juris 
diction  ought  to  be  united  in  the  same  persons.  They  are  actu 
ally  united  in  our  inferior  courts;  and  I  have  never  heard  it 
suggested  that  this  union  is  otherwise  inconvenient  than  as  it 
produces  delay  to  the  chancery  docket.  I  never  heard  it  pro 
posed  to  give  the  judges  of  the  general  court  chancery  juris 
diction.  When  tHe  district  system  was  introduced  in  '82,  it  was 
designed  to  give  the  district  judges  the  powers  of  chancellors, 
but  the  act  did  not  then  pass,  though  the  part  concerning  the 
court  of  chancery  formed  no  objection  to  the  bill.  When 
again  introduced  it  assumed  a  different  form,  nor  has  the  idea 
ever  been  revived. 

The  first  act  constituting  a  high  court  of  chancery  annexed  a 
jury  for  the  trial  of  all  important  facts  in  the  cause.  To  this,  I 
presume,  we  were  led  by  that  strong  partiality  which  the  citizens 

2* "  Life  of  Albert  Gallatin,"  by  Henry  Adams,  pp.  81-83. 


DOCTRINES  OF  JOHN  MARSHALL  39 

of  America  have  for  that  mode  of  trial.  It  was  soon  parted 
with,  and  the  facts  submitted  to  the  judge,  with  a  power  to 
direct  an  issue  wherever  the  fact  was  doubtful.  In  most 
chancery  cases  the  law  and  fact  are  so  blended  together  that 
if  a  jury  was  impanelled  of  course  the  whole  must  be  sub 
mitted  to  them,  or  every  case  must  assume  the  form  of  a 
special  verdict,  which  would  produce  inconvenience  and  delay. 

The  delays  of  the  court  of  chancery  have  been  immense, 
and  those  delays  are  inseparable  from  the  court  if  the  practice 
of  England  be  observed.  But  that  practice  is  not  necessary. 
'Tis  greatly  abridged  in  Virginia  by  an  Act  passed  in  1787,  and 
great  advantages  result  from  the  reform.  There  have  been 
instances  of  suits  depending  for  twenty  years,  but  under  our 
present  regulations  a  decision  would  be  had  in  that  court  as 
soon  as  any  other  in  which  there  were  an  equal  number  of 
weighty  causes.  The  parties  may  almost  immediately  set  about 
collecting  their  proofs,  and  so  soon  as  they  have  collected  them 
they  may  set  the  cause  on  the  court  docket  for  a  hearing. 

It  has  never  been  proposed  to  blend  the  principles  of  common 
law  and  chancery  so  as  for  each  to  operate  at  the  same  time  in 
the  same  cause;  and  I  own  it  would  seem  to  me  to  be  very 
difficult  to  effect  such  a  scheme,  but  at  the  same  time  it  must 
be  admitted  that  could  it  be  effected  it  would  save  considerable 
sums  of  money  to  the  litigant  parties. 

I  enclose  you  a  copy  of  the  act  you  request.  I  most  sin 
cerely  condole  with  you  on  your  heavy  loss.  Time  only,  aided 
by  the  efforts  of  philosophy,  can  restore  you  to  yourself. 

I  am,  dear  sir,  with  much  esteem,  your  obedient  servant, 

J.    MARSHALL.25 

25  The  above  letter  appears  in  the  Chapter  on  "The  Legislature,  1789- 
1801,"  in  the  "Life  of  Albert  Gallatin,"  who  was  one  of  those  persons 
who  thought  the  new  Constitution  went  much  too  far.  Henry  Adams 
says :  "  He  would,  doubtless,  have  preferred  that  all  the  great  depart 
ments, —  executive,  legislative,  and  judicial, —  should  have  been  more 
closely  restricted  in  their  exercise  of  power,  and  that  the  President 
should  be  reduced  to  a  cypher." 

"Gallatin  seems  to  have  been  interested  in  an  attempt  to  lessen  the 
difficulties  growing  from  the  separation  of  law  and  equity.  On  this  sub 
ject  he  wrote  early  to  John  Marshall  for  advice,  and  although  the  reply 
has  no  very  wide  popular  interest,  yet,  in-  the  absence  of  any  collection  of 
Marshall's  writings,  this  letter  may  claim  a  place  here,  illustrating,  as  it 
does,  not  only  the  views  of  the  future  chief  justice,  but  the  interests  and 
situation  of  Mr.  Gallatin."  (P.  81,  "Life  of  Gallatin,"  by  Adams.) 


40  THE  POLITICAL  AND  ECONOMIC 

LETTER  26  FROM  JUDGE  MARSHALL  TO  ARTHUR  LEE 

RICHMOND,  March  5,  1787. 
DEAR  SIR  : 

Your  favour  of  the  loth  of  January  is  now  before  me.  I 
have  not  sent  the  letter  you  enclosed  me  in  search  of  Mr.  Imlay, 
because  I  am  told  by  my  brother,  who  is  much  better  acquainted 
with  him  than  I  am,  that  he  either  now  is,  or  will  very  soon  be 
in  New- York. 

I  have  in  my  possession  the  notes  you  enquire  for.  I  very 
much  fear  that  the  conduct  of  some  unthinking  men  in  the 
western  country  will  embroil  us  with  Spain,  unless  there  be 
some  more  vigorous  interposition  of  government  than  we  seem 
disposed  to  make.  A  memorial  signed  by  some  of  the  most 
respectable  persons  of  Kentucky  has  lately  been  presented  to 
the  governor  on  this  subject,  in  which  the  conduct  of  Gen. 
Clark,  I  am  told,  is  a  good  deal  criminated.  Whether  the 
cession  for  a  time  of  the  navigation  of  the  Mississippi  would 
conduce  to  the  interest  of  the  western  country  or  not  must 
depend  on  facts  of  which  I  have  but  little  information,  and 
therefore  have  never  formed  a  decided  opinion  on  the  subject; 
but  the  people  of  this  as  well  as  of  the  Kentucky  country,  who 
seem  to  form  no  adequate  ideas  of  the  magnitude  of  danger 
while  at  a  distance,  have  pronounced  upon  it  without  hesita 
tion.  Mr.  Henry,  whose  opinions  have  their  usual  influence, 
has  been  heard  to  say  that  he  would  rather  part  with  the  Con 
federation  than  relinquish  the  navigation  of  the  Mississippi ; 
but,  as  we  have  been  '  fortiter  in  modo,'  I  dare  say  we  shall  be 
'  suaviter  in  re.' 

I  congratulate  you  on  the  prospects  of  re-establishing  order 
and  good  government  in  Massachusetts.  I  think  their  govern 
ment  will  now  stand  more  firmly  than  before  the  insurrection, 
provided  some  examples  are  made,  in  order  to  impress  on  the 
minds  of  the  people  a  conviction  that  punishment  will  surely 
follow  an  attempt  to  subvert  the  laws  and  government  of  the 
commonwealth.  Our  attention  is  now  turned  entirely  towards 
the  next  elections.  The  debtors  as  usual  are  endeavouring  to 
come  into  the  assembly,  and  as  usual  I  fear  they  will  succeed. 

I  am,  dear  sir,  with  the  highest  esteem,  your  obedient 
servant,  J.  MARSHALL. 

Hon.  Arthur  Lee,  Esq. 
26 "  Life  of  Arthur  Lee,"  by  R.  H.  Lee,  Vol.  II,  pp.  321-322. 


DOCTRINES  OF  JOHN  MARSHALL  41 

LETTER  27  FROM  CHIEF  JUSTICE  MARSHALL  TO 
HENRY  CLAY 

RICHMOND,  April  4,  1825. 
DEAR  SIR: 

I  have  received  your  address  to  your  former  constituents; 
and,  as  it  was  franked  by  you,  I  presume  I  am  indebted  to  you 
for  it.  I  have  read  it  with  great  pleasure  as  well  as  attention, 
and  am  gratified  at  the  full  and  complete  view  you  have  given 
of  some  matters  which  the  busy  world  has  been  employing 
itself  upon.  I  required  no  evidence  respecting  the  charge  made 
by  Mr.  Kremer,  nor  should  I  have  required  any  had  I  been 
unacquainted  with  you  or  with  the  transaction,  because  I  have 
long  since  ceased  to  credit  charges  destitute  of  proof,  and  to 
consider  them  as  mere  aspersions.  The  minuteness  of  detail, 
however,  will  enable  your  friends  to  encounter  any  insinua 
tions  on  that  subject  which  may  be  thrown  out  in  their  hearing. 
More  of  this  may  be  looked  for  than  any  hostility  to  you  would 
produce.  There  is  unquestionably  a  party  determined  to 
oppose  Mr.  Adams  at  the  next  election,  and  this  party  will  at 
tack  him  through  you.  It  is  an  old,  and  has  been  a  successful 
stratagem.  No  part  of  your  letter  was  more  necessary  than 
that  which  respects  your  former  relations  with  that  gentleman. 

LETTER  28  FROM  CHIEF  JUSTICE  MARSHALL  TO 
HENRY  CLAY 

RICHMOND,  January  5,  1828. 
DEAR  SIR: 

I  thank  you  for  the  copy  of  your  address  on  the  charges 
made  against  you  respecting  the  election  of  President,  which  I 
have  read  with  the  more  pleasure  because  it  combines  a  body  of 
testimony  much  stronger  than  I  had  supposed  possible,  which 
must  I  think  silence  even  those  who  wish  the  charge  to  be 
believed. 

With  sincere  wishes  for  the  improvement  of  your  health,  and 
with  real  esteem,  I  am, 
Dear  sir, 

Yours,  etc., 

J.  MARSHALL. 

27 "  The  Private  Correspondence  of  Henry  Gay,"  Colton,  p.  121. 
28  Ibid.,  p.  189. 


42  THE  POLITICAL  AND  ECONOMIC 

LETTER  29  FROM  CHIEF  JUSTICE  MARSHALL  TO 
HENRY  CLAY 

RICHMOND,  November  28,  1828. 
MY  DEAR  SIR  : 

In  consequence  of  my  inattention  to  the  post-office,  I  did  not 
receive  your  letter  of  the  23d  till  yesterday  afternoon.  I  need 
not  say  how  deeply  I  regret  the  loss  of  Judge  Trimble.  He  was 
distinguished  for  sound  sense,  uprightness  of  intention,  and 
legal  knowledge.  His  superior  can  not  be  found.  I  wish  we 
may  find  his  equal.  You  are  certainly  correct  in  supposing 
that  I  feel  a  deep  interest  in  the  character  of  the  person  who 
may  succeed  him.  His  successor  will,  of  course,  be  designated 
by  Mr.  Adams,  because  he  will  be  required  to  perform  the  most 
important  duties  of  his  office,  before  a  change  of  administration 
can  take  place. 

Mr.  Crittenden  is  not  personally  known  to  me,  but  I  am  well 
acquainted  with  his  general  character.  It  stands  very  high. 
Were  I  myself  to  designate  the  successor  of  Mr.  Trimble,  I  do 
not  know  the  man  I  could  prefer  to  him.  Report,  in  which 
those  in  whom  I  confide  concur,  declares  him  to  be  sensible, 
honorable,  and  a  sound  lawyer.  I  shall  be  happy  to  meet  him 
at  the  Supreme  Court  as  an  associate.  The  objection  I  have  to 
a  direct  communication  of  this  opinion  to  the  President  arises 
from  the  delicacy  of  the  case.  I  can  not  venture,  unasked,  to 
recommend  an  associate  justice  to  the  President,  especially  a 
gentleman  who  is  not  personally  known  to  me.  It  has  the 
appearance  of  assuming  more  than  I  am  willing  to  assume.  I 
must,  then,  notwithstanding  my  deep  interest  in  the  appoint 
ment,  and  my  conviction  of  the  fitness  of  Mr.  Crittenden  —  a 
conviction  as  strong  as  I  could  well  feel  in  favor  of  a  gentleman 
of  whom  I  judge  only  from  a  general  character  —  decline 
writing  to  the  President  on  the  subject. 

LETTER^  FROM  CHIEF  JUSTICE  MARSHALL  TO 
HENRY  CLAY 

RICHMOND,  May  7,  1832. 
DEAR  SIR: 

On  my  return  to  this  place,  from  a  visit  to  my  friends  in  our 

29  "  The  Private  Correspondence  of  Henry  Clay,"  by  Colton,  p.  212. 
so  Ibid.,  p.  339. 


DOCTRINES  OF  JOHN  MARSHALL  43 

upper  country,  I  had  the  pleasure  of  receiving  your  report  on 
the  public  lands,  which  I  have  read  with  attention.  The  subject 
is  of  immense  interest,  and  has  long  produced  and  is  still  pro 
ducing  great  excitement. 

My  sentiments  concur  entirely  with  those  contained  in  the 
report,  which  are  so  clearly  and  so  well  expressed  that  it  must, 
I  think,  be  approved  by  a  great  majority  of  Congress.  Una 
nimity  is  not  to  be  expected  in  anything. 

I  thank  you  for  this  mark  of  attention,  and  am  with  great  and 
respectful  esteem  your  obedient  servant, 

J.  MARSHALL. 

LETTER  si  FROM  CHIEF  JUSTICE  MARSHALL  TO 
HENRY  CLAY 

WASHINGTON,  March  13,  1833. 
DEAR  SIR: 

My  nephew,  Marshall  Jones  purposes  to  remove  to  New 
Orleans  with  a  view  to  the  practice  of  the  law,  and  is,  I  believe, 
now  in  that  place.  The  circumstances  under  which  he  left 
Virginia  increase  my  solicitude  for  his  success.  A  personal  ren 
counter  with  a  young  gentleman  who  had  abused  him  wantonly 
and  grossly  terminated  very  unfortunately  in  the  death  of  his 
adversary.  This  compelled  him  to  fly  from  Virginia  and  from 
very  flattering  professional  prospects.  After  visiting  Canada 
and  Texas,  he  has  at  length,  I  am  told,  determined  on  trying 
his  fortune  in  New  Orleans.  I  am  extremely  desirous  of  pro 
moting  his  object,  but  with  the  exception  of  Mr.  Johnston,  am 
not  acquainted  with  a  single  individual  in  that  place.  May  I 
ask  the  favor  of  you  to  mention  him  to  some  of  your  friends, 
not  as  a  person  known  to  yourself,  but  as  my  friend  and  relation 
whom  I  strongly  recommend.  I  have  the  most  entire  confi 
dence  in  his  honor,  integrity,  and  amiable  qualities;  and  shall 
feel  myself  greatly  obliged  by  your  bestowing  on  him  so  much 
of  your  countenance  as  may  favor  his  introduction  into  society 
and  his  professional  exertions.  For  the  rest,  he  must  depend 
upon  himself.  With  great  respect  and  esteem,  I  am,  dear  sir, 
your  obedient  servant, 

J.  MARSHALL. 

3i  Ibid.,  pp.  352-353- 


44  THE  POLITICAL  AND  ECONOMIC 

LETTER «  FROM  JOHN  MARSHALL,  SUBSEQUENTLY  CHIEF 
JUSTICE  OF  THE  UNITED  STATES,  TO  JAMES  IREDELL 

RICHMOND,  Dec.  i5th,  '96. 
DEAR  SIR: 

I  had  not  the  pleasure  of  receiving  till  yesterday  your  favor 
of  the  3d  instant.  Since  then,  I  have  seen  the  votes  of  North 
Carolina,  and  you,  I -presume,  those  of  Virginia.  Mr.  Adams 
would  have  received  one  other  vote  had  Mr.  Eyre  really  been 
elected,  but  he  was  left  out  by  accident.  There  was  supposed  to 
be  no  opposition  to  him,  and  in  consequence  of  that  opinion  the 
people  in  one  county,  on  the  eastern  shore,  did  not  vote  at  all, 
and  in  the  other  a  very  few  assembled.  On  the  day  of  election 
the  people  of  Princess  Ann,  whose  Court  day  it  happened  to  be, 

assembled  in  numbers,  and  elected  Mr.  ,  who  voted  for 

Mr.  Jefferson.  From  that  gentleman  you  will  have  heard  there 
were  twenty  votes  for  Mr.  Samuel  Adams,  fifteen  for  Mr. 
Clinton,  three  for  Burr,  Gen.  Washington  one,  Mr.  Pinckney 
one,  and  Mr.  John  Adams  one.  I  received  a  letter  from  Phila 
delphia,  stating  that  five  votes  south  of  the  Potomac  would  be 
necessary  to  secure  the  election  of  Mr.  Adams.  It  is  then 
certain  that  he  cannot  be  elected.  Our  assembly,  which  you 
know  is  in  session,  displays  its  former  hostility  to  federalism. 
They  have  once  more  denied  wisdom  to  the  administration  of 
the  President,  and  have  gone  so  far  as  to  say  in  argument,  that 
we  ought  not  by  any  declarations  to  commit  ourselves,  so  as  to 
be  bound  to  support  his  measures  as  they  respect  France.  To 
what  has  America  fallen !  Is  it  to  be  hoped  that  North  Car 
olina  will,  in  this  particular,  rather  adopt  such  measures  as  have 
been  pursued  by  other  States,  than  tread  the  crooked  paths  of 
Virginia? 

I  have  received  a  letter  from  Mr.  Dallas,  and  will  furnish  him 
with  my  argument  in  the  case  of  the  British  debts.  I  expect  to 
be  under  the  necessity  of  getting  the  opinions  of  the  Judges, 
except  yours,  from  Mr.  Dallas,  whose  report  of  the  case  will 
be  published  before  mine. 

With  very  much  respect  and  esteem, 
I  am,  dear  sir, 

Your  Obed't        j.  MARSHALL. 

32  "Life  and  Correspondence  of  James  Iredell,  One  of  the  Associate 
Justices  of  the  Supreme  Court  of  the  United  States,"  by  Griffith  J.  Mc- 
Ree,  Vol.  II,  pp.  482-483. 


DOCTRINES  OF  JOHN  MARSHALL  45 

LETTER  33  FROM  CHIEF  JUSTICE  MARSHALL  ADDRESSED 
TO  THE  REV.  R.  R.  CURLEY,  SECRETARY  OF  THE  AMER 
ICAN  COLONIZATION  SOCIETY 

RICHMOND,  Dec.  14,  1831. 
DEAR  SIR: 

I  received  your  letter  of  the  7th,  in  the  course  of  the  mail,  but 
it  was  not  accompanied  by  the  documents  you  mention. 

I  undoubtedly  feel  a  deep  interest  in  the  success  of  the 
Society,  but,  if  I  had  not  long  since  formed  a  resolution  against 
appearing  in  print  on  any  occasion,  I  should  now  be  unable  to 
comply  with  your  request.  In  addition  to  various  occupations 
which  press  on  me  very  seriously,  the  present  state  of  my  family 
is  such  as  to  prevent  my  attempting  to  prepare  anything  for 
publication. 

The  great  object  of  the  Society,  I  presume,  is  to  obtain 
pecuniary  aid.  Application  will  undoubtedly  be  made,  I  hope 
successfully,  to  the  several  State  Legislatures  by  the  societies 
formed  within  them  respectively.  It  is  extremely  desirable 
that  they  should  pass  permanent  laws  on  the  subject,  and  the 
excitement  produced  by  the  late  insurrection  makes  this  a  favor 
able  moment  for  the  friends  of  the  Colony  to  press  for  such 
acts.  It  would  be  also  desirable,  if  such  a  direction  could  be 
given  to  State  Legislation  as  might  have  some  tendency  to 
incline  the  people  of  color  to  migrate.  This,  however,  is  a 
subject  of  much  delicacy.  Whatever  may  be  the  success  of 
our  endeavors  to  obtain  acts  for  permanent  aids,  I  have  no 
doubt  that  our  applications  for  immediate  contributions  will 
receive  attention.  It  is  possible,  though  not  probable,  that  more 
people  of  color  may  be  disposed  to  migrate  than  can  be  provided 
for  with  the  funds  the  Society  may  be  enabled  to  command. 
Under  this  impression  I  suggested,  some  years  past,  to  one  or 
two  of  the  Board  of  Managers,  to  allow  a  small  additional 
bounty  in  lands  to  those  who  would  pay  their  own  passage  in 
whole  or  in  part.  The  suggestion,  however,  was  not  approved. 

It  is  undoubtedly  of  great  importance  to  retain  the  counte 
nance  and  protection  of  the  General  Government.  Some  of 
our  cruisers  stationed  on  the  coast  of  Africa  would,  at  the  same 

33  At  the  Fifteenth  Annual  Meeting  of  the  American  Colonization  So 
ciety,  January  16,  1832,  in  the  Hall  of  the  House  of  Representatives  of 
the  United  States,  to  a  packed  house  the  above  letter  was  read  with  oth 
ers  from  Lafayette,  Ex-President  James  Madison,  and  others.  Many 
great  men  were  unable  to  gain  admittance  on  account  of  the  large  crowd. 


46  THE  POLITICAL  AND  ECONOMIC 

time,  interrupt  the  slave  trade  —  a  horrid  traffic  detested  by  all 
good  men,  and  would  protect  the  vessels  and  commerce  of  the 
Colony  from  pirates  who  infest  those  seas.  The  power  of  the 
government  to  afford  this  aid  is  not,  I  believe,  contested.  I 
regret  that  its  power  to  grant  pecuniary  aid  is  not  equally  free 
from  question.  On  this  subject,  I  have  always  thought,  and 
still  think,  that  the  proposition  made  by  Mr.  King,  in  the 
Senate,  is  the  most  unexceptionable,  and  the  most  effective  that 
can  be  devised. 

The  fund  would  probably  operate  as  rapidly  as  would  be 
desirable,  when  we  take  into  view  the  other  resources  which 
might  come  in  aid  of  it,  and  its  application  would  be,  perhaps, 
less  exposed  to  those  constitutional  objections  which  are  made 
in  the  South  than  the  application  of  money  drawn  from  the 
Treasury  and  raised  by  taxes.  The  lands  are  the  property  of 
the  United  States,  and  have  heretofore  been  disposed  of  by 
the  government  under  the  idea  of  absolute  ownership.  The 
cessions  of  the  several  States  convey  them  to  the  General  Gov 
ernment  for  the  common  benefit  without  prescribing  any  limits 
to  the  judgment  of  Congress,  or  any  rule  by  which  that  judg 
ment  shall  be  exercised.  The  cession  of  Virginia  indeed  seems 
to  look  to  an  apportionment  of  the  fund  among  the  States,  "  ac 
cording  to  their  several  respective  proportions  in  the  general 
charge  and  expenditure."  But  this  cession  was  made  at  a  time 
when  the  lands  were  believed  to  be  the  only  available  fund  for 
paying  the  debts  of  the  United  States  and  supporting  their 
Government.  This  condition  has  probably  been  supposed  to  be 
controlled  by  the  existing  constitution,  which  gives  Congress 
"  power  to  dispose  of,  and  make  all  needful  rules  and  regula 
tions  respecting  the  territories  or  the  property  belonging  to  the 
U.  States.  It  is  certain  that  the  donations  made  for  roads  and 
colleges  are  not  in  proportion  to  the  part  borne  by  each  State 
of  the  general  expenditure.  The  removal  of  our  colored  popu 
lation  is,  I  think,  a  common  object,  by  no  means  confined  to 
the  slave  States,  although  they  are  more  immediately  interested 
in  it.  The  whole  Union  would  be  strengthened  by  it,  and 
relieved  from  a  danger,  whose  extent  can  scarcely  be  estimated. 
It  lessens  very  much  in  my  estimation  the  objection  in  a  po 
litical  view  to  the  application  of  this  ample  fund  that  our  lands 
are  becoming  an  object  for  which  the  States  are  to  scramble, 
and  which  threatens  to  sow  the  seeds  of  discord  among  us  in- 


DOCTRINES  OF  JOHN  MARSHALL  47 

stead  of  being  what  they  might  be  —  a  source  of  national 
wealth. 

I  am,  dear  sir,  with  great  and  respectful  esteem, 
Your  obedient  servant, 

J.  MARSHALL. 

TO  CHARLES  CARTER 

RICHMOND,  May  8th,  1833. 
MY  DEAR  SIR  : 

Your  letter  of  the  27th  of  April  reached  me  two  or  three 
days  past.  Let  me  congratulate  you  on  the  equanimity  with 
which  you  contemplate  your  [the  next  few  words  are  illegible] 
rocks  and  mountains.  They  can  be  rendered  pleasant  by  one 
step  and  by  one  only.  That  your  own  feelings  will  readily 
suggest,  and  will  urge  upon  you  with  irrestible  force. 

Mr.  Pendleton  died  on  the  23d  of  October  1803.  I  do  not 
know  his  age  exactly.  He  was  about  eighty.  I  am  uncertain 
whether  he  had  completed  his  8oth  year  or  was  to  it.  I  do  not 
know  whether  he  wrote  the  political  article  suggested  to  him 
by  Mr.  Jefferson  in  his  letter  of  Jan.  29  &  Feb.  24.  So  many 
essays  appear  on  that  subject  that  my  memory  does  not  retain 
them.  I  have  however  no  recollection  that  any  one  of  them 
was  ascribed  to  Mr.  Pendleton. 

The  long  home  letter  was  a  subject  of  much  conversation  at 
the  time.  I  know  of  no  person  who  is  intimately  acquainted 
with  all  its  inner  [the  next  few  words  are  illegible]  but  Col. 
John  Nichols.  It  is  possible  that  he  may  have  retained  a 
copy  of  it.  If  he  has  not  a  copy  it  might  be  found  in  the  papers 
published  by  Augustine  Davis  but  I  know  not  where  that  paper 
is  to  be  found. 

Mr.  Sujt  has  received  a  letter  from  your  brother  making 
enquiries  respecting  this  letter,  and  I  have  referred  him  to  Col. 
Nichols.  It  was  generally  ascribed  at  the  time  to  Mr.  Carr. 

I  suspect  the  intention  of  attacking  your  brother's  observa 
tions  on  the  writings  of  Mr.  Jefferson  is  abandoned.  I  am 
inclined  to  believe  that  the  friends  of  the  gentleman  are  willing 
to  permit  the  subject  to  sink  into  oblivion  if  possible. 

I  believe  that  the  reference  of  Mr.  Ritchie  to  a  paper  pub 
lished  by  Mr.  Pendleton  was  to  one  written  by  him  after  the 
election  of  Mr.  Jefferson  which  was  headed  "  The  danger  not 


48  THE  POLITICAL  AND  ECONOMIC 

over."     Its  particular  object  was  to  keep  up  jealousy  and  sus 
picion  against  the  federalists.     I  do  not  recollect  that  it  was 
directed  particularly  against  the  X  Y  &  Z  dispatch. 
I  am  my  dear  Sir  with  great  regard 
and  esteem 

Your  obed't 

J.  MARSHALL. 


of 

l 


WASHINGTON,  Jany  29,  1832. 
DEAR  SIR: 

I  received  two  or  three  days  past  your  letter  of  the  26th  of 
Nov.  through  Major  Lewis.     That  written  about  three  wee 
earlier  to  which  you  refer  has  never  reached  me. 

I  have  heard  of  the  work  to  which  you  allude,  and  it  has  bee 
well  spoken  of.  The  pen  from  which  it  proceeds  authorize 
high  expectations,  and  I  am  sure,  although  it  may  attract  much 
abuse,  it  will  be  read  with  great  avidity.  For  any  defense  of 
myself  I  shall  of  course  be  grateful ;  and  have  certainly  no  wish 
that  it  should  (ever  act)  or  encroach  on  your  paper.  Were 
my  own  wishes  to  be  consulted  I  certainly  would  not  make  a 
principal  figure  in  the  piece,  and  shall  think  my  place  fully  as 
conspicuous  as.  it  ought  to  be  if  I  am  classed  with  those  you 
mention,  and  am  proportionately,  I  have  so  much  vanity  as  to 
say  equally  noticed.  I  am  sure  I  shall  not  think  your  re 
searches  indifferent  much  less  injurious. 

I  have  never  allowed  myself  to  be  excited  (or  intimidated) 
by  Mr.  Jefferson's  unprovable  and  unjustifiable  aspersions  on 
my  conduct  and  principles,  nor  have  I  ever  noticed  them  except 
on  one  occasion  when  I  thought  myself  called  on  to  do  so,  and 
when  I  thought  that  declining  to  enter  upon  my  justification 
might  have  the  appearance  of  crouching  under  the  lash,  and 
admitting  the  justice  of  its  infliction. 

I  believe  no  copy  of  the  dispatches  of  the  Envoys  of  whom  I 
was  one  is  now  to  be  found  except  in  the  volumes  of  state  papers 
published  by  the  governments  of  foreign  communications  to 
the  French  Directory.  I  never  saw  a  copy  nor  do  I  believe  that 
one  having  the  appearance  of  authority  was  ever  published.  If 
any  supposititious  paper  was  uttered  in  any  federal  gazette  I  do 
not  recollect  to  have  seen  it,  nor  do  I  recollect  that  federalists 
ever  charged  the  party  led  by  Mr.  Jefferson  with  having  applied 
for  military  aid.  We  suspected,  and  the  scanty  communica- 


DOCTRINES  OF  JOHN  MARSHALL  49 

tions  we  received  confirmed  the  suspicion,  that  the  logic  of 
Logan's  Mission  was  to  answer  the  Directory  that  they  had 
gone  too  far  and  that  their  party  in  this  country  would  be 
ruined,  should  they  persist  in  the  course  of  outrage  and  hos 
tility  which  had  been  commenced  with  so  much  violence. 

I  do  not  believe  that  Logan's  transactions  in  France  have  ever 
been  published.  Certainly  I  have  no  account  of  them,  nor  have 
I  the  possession  of  any  documents  which  can  throw  light  on 
that  affair.  I  recollect  that  something  was  published  by  Logan 
himself  respecting  it  long  after  his  return  but  I  do  not  remem 
ber  the  substance  of  his  publication  and  have  no  copy  of  it. 

Our  dispatches,  which  were  laid  before  Congress  and  pub- 
Jfcshed  contain  all  the  information  it  would  be  in  my  power  to 
Rive  relative  to  our  communications  with  the  directory  or  its 
j^pgents.     I  did  indeed  keep  a  journal  in  which  was  inserted  our 
Carious  conversations  with  the  agents  of  Mr.  Tallyrand.     The 
most  interesting  communication  which  I  recollect  was  the  assur 
ance  which  the  most  confidential  of  them  gave  us  that  if  we 
supposed  we  should  be  supported  by  our  countrymen  we  were 
mistaken ;  that  the  influence  of  France  in  the  United  States  was 
such  that  we  should  find  our  countrymen  ready  to  take  part 
against  us.     I  do  not  recollect  the  words  but  this  was  the  sub 
stance. 

Your  book  will  be  looked  for  with  impatience  generally 
certainly  by  myself. 

I  am,  dear  Sir,  with  the  best  wishes  for  your  happiness,  very 
respectfully  your  obedt  servant, 

J.  MARSHALL. 

TO  BUSHROD  WASHINGTON 

RICHMOND,  Oct.  31,  1819. 
DEAR  SIR: 

I  received  this  morning  yours  of  the  26th.  The  cases  which 
will  come  before  you  in  Philadelphia,  if  the  indictments  are 
drawn  on  the  last  act  of  Congress  must  depend,  if  the  accused 
are  guilty,  on  the  very  point  I  have  adjourned  to  the  supreme 
court,  because  that  question  whether,  in  any  case  whatever,  a 
communication  can  take  place  under  that  act.  In  the  trial  at 
Richmond  the  evidence  was  perfectly  clear  &  the  case  was  un 
equivocally  a  case  of  piracy  according  to  the  laws  of  every  civ- 


50  THE  POLITICAL  AND  ECONOMIC 

ilized  nation.     The  doubt  I  entertain  is  whether  there  is  any 
such  thing  as  Piracy  as  "  defined  by  the  laws  of  nations/' 

All  nations  punish  robbery  committed  on  the  high  seas  by 
vessels  not  commissioned  to  make  captures,  yet  I  doubt  seri 
ously  whether  any  nation  punishes  otherwise  than  by  force  of 
its  own  particular  statute. 

This  account  given  by  the  editor  of  the  union  is  not  correct. 
The  subscription  was  four  dollars  per  annum  instead  of  five 
unless  the  subscriber  was  in  arrears  &  I  was  in  advance.  I  had 
paid  to  Col.  [the  name  is  not  clear],  the  authorized  agent  of 
Mr.  Bronson,  when  the  Gazzette  of  the  United  States  became 
the  Union  it  was  advertised  that  in  future  the  paper  would  be 
five  dollars,  but  that  this  charge  would  not  affect  those  who 
were  in  advance  for  the  paper  until  the  time  for  which  they  had 
paid  should  elapse.  I  was  then  in  advance  to  last  June,  conse 
quently  I  only  owe  for  that  time.  I  am  not  however  disposed 
to  quibble  about  it.  Mr.  Bronson  I  presume  has  sold  out  his 
accounts  with  his  paper  and  has  credited  me  only  from  the  time 
his  agent  has  settled  with  him,  in  consequence  of  which  he  has 
charged  me  five  instead  o.f  four  dollars.  I  request  you  there 
fore  to  pay  the  amount. 

I  am  dear  Sir  yours  [torn  off] 

J.  MARSHALL. 

WASHINGTON,  Jany  i8th,  '34. 
DEAR  SIR: 

I  received  some  time  past  your  letter  informing  me  that  you 
had  presented  your  "  Life  of  Washington  "  to  a  literary  friend 
and  requesting  another  copy.  Not  having  an  opportunity  of 
forwarding  to  you  this  record  copy,  I  deferred  the  business 
till  my  arrival  in  Washington  when  I  might  commit  it  to  the  care 
of  your  friend  Major  Lewis  in  the  hope  that  it  would  reach  you 
safely.  The  letter  you  have  received  from  Mr.  Madison  re 
moves  the  evil  which  the  misspelling  of  a  name  had  cast  over 
the  letter  published  in  Mr.  Jefferson's  Correspondence  to  which 
you  allude. 

You  are  right  in  supposing  that  I  was  on  very  intimate  terms 
with  your  Father  about  the  time  to  which  you  refer  in  your 
letter  of  the  I7th  of  September  last,  and  afterward  to  the  close 
of  his  life.  We  served  together  in  the  legislature  of  the  state 
and  generally  acted  together  in  the  assembly  of  Virginia  as 


DOCTRINES  OF  JOHN  MARSHALL  51 

well  as  in  Congress.  He  was  during  the  whole  of  that  time  the 
personal  as  well  as  political  friend  both  of  General  Washing 
ton  and  Colonel  Hamilton,  and  supported  the  administration  of 
General  Washington  during  his  first  Presidency  as  well  as  for 
the  second  term,  in  every  measure  but  one.  He  was  seriously 
and  warmly  opposed  to  the  assumption  of  the  state  debts,  and 
took  an  active  part  in  the  House  of  Delegates  against  the  ad 
ministration  and  some  resolutions  which  were  offered  con 
demnatory  of  that  part  of  Hamilton's  system  of  finance.  I 
know  however  that  this  course  neither  estranged  him  from 
General  Washington  nor  Col.  Hamilton.  The  friendship  be 
tween  them  I  have  reason  to  believe  was  never  interrupted. 
I  am  inclined  to  believe,  but  of  this  I  am  not  certain,  that  Gen 
eral  Lee  also  disapproved  that  part  of  the  system  which  gave  to 
holders  of  certificates  the  full  value  expressed  on  their  face. 
My  recollection  on  this  point  is  uncertain,  but  on  the  assump 
tion  it  is  positive  because  I  well  remember  his  eloquence  and 
earnest  speeches  on  the  subject. 

I  suspect  however  that  the  confidence  and  friendship  of  the 
parties  was  not  impaired  by  this  opposition  of  sentiment  on 
this  question.  Of  this  you  have  I  doubt  not,  abundant  proof  in 
the  correspondence  of  your  Father. 

We  have  a  stormy  session  abounding  with  subjects  of  great 
excitement.     The  old  federalists  see  much  to  deplore  and  not  \ 
much  to  approve. 

We  fear  that  the  fabric  created  for  us  by  our  predecessors  is 
about  to  tumble  into  ruin.  But  I  mix  so  little  with  politicians 
that  it  would  be  presumptuous  in  me  to  hazard  conjecture  on 
the  future.  The  papers  will  give  you  some  idea  of  the  state  of 
public  feeling.  Providence  has  saved  us  more  than  once,  and 
I  hope  will  save  us  again. 

I  am  dear  Sir  with  great  respect  and  regard 

Your  obedt 

J.  MARSHALL. 

On  the  outside  of  the  following  letter  was  the  address :  Mr. 
Hon'ble  Bushrod  Washington,  Alexandria,  June  10,  '16. 

I  expected  these  numbers  would  have  concluded  my  answer  to 
Hampden  but  I  must  write  two  others  which  will  follow  in  a 
few  days.  If  the  publication  has  not  commenced  I  would 


52  THE  POLITICAL  AND  ECONOMIC 

rather  wish  the  signature  to  be  changed  to  "  A  Constitutional 
ist." 

A  friend  of  the  Constitution  is  so  much  like  a  friend  of  the 
Union  that  it  may  lead  to  some  suspicion  of  identity.  It  is 
however  of  no  great  consequence.  I  hope  the  publication  has 
commenced  unless  the  editor  should  be  unwilling  to  devote  so 
much  of  his  paper  to  this  discussion.  The  letters  of  Amphyc- 
tion  &  of  Hampden  have  made  no  great  impression  in  Rich 
mond,  but  they  were  designed  for  the  country  &  have  had  con 
siderable  influence  there.  I  wish  the  refutation  to  be  in  the 
hand  of  some  respectable  members  of  the  legislature  and  may 
prevent  some  act  of  the  assembly  (equally)  silly  &  wicked.  If 
the  publication  be  made,  I  should  like  to  have  two  or  three  sets 
of  the  papers  to  be  used  if  necessary. 

I  will  settle  with  the  printer. 

The  above  five  or  six  letters,  all  in  a  fair  state  of  preservation, 
are  in  the  manuscript  department  of  the  Library  of  Congress. 
They  were  nearly  all  sent  to  Bushrod  Washington.  There  are 
words,  names,  and  addresses  written  on  the  backs  of  some  of 
the  letters,  which,  by  the  way,  have  never  been  published  before. 

UNPUBLISHED  LETTER 

From  Chief  Justice  Marshall  to  George  Washington,  of  Georgetown,  on 
the  occasion  of  the  death  of  Judge  Bushrod  Washington.     Con 
tributed  by  Mr.  William  Alexander  Smith,  of  New  York  City 

RICHMOND,  VA.,  Nov.  29th,  1829. 
To  Hon.  George  Washington, 

Georgetown. 
MY  DEAR  SIR  : 

I  am  much  obliged  by  the  kind  attention  manifested  by  your 
letter  of  the  26th  inst.  The  intelligence  it  communicates  is 
indeed  most  afflicting.  I  had  few  friends  whom  I  valued  so 
highly  as  your  Uncle,  or  whose  loss  I  should  regret  more 
sincerely. 

I  had  flattered  myself  when  we  parted  last  spring  that  I 
should  leave  him  on  the  bench  when  retiring  from  it  myself ;  but 
Heaven  has  willed  otherwise.  We  have  been  most  intimate 
friends  for  more  than  forty  years,  and  never  has  our  friendship 


DOCTRINES  OF  JOHN  MARSHALL  53 

sustained  the  slightest  interruption.     I  sympathise  most  truly 
with  Mrs.  Washington. 

With  great  respectful  esteem, 

I  am,  dear  sir, 

your  obedt. 

J.    MARSHALL.34 

RICHMOND,  July  27th,  1812. 
DEAR  SIR: 

I  had  this  morning  the  pleasure  of  receiving  your  letter  of  the 
24th—  The  paper  you  mention  reached  me  a  few  days  past 
&  was  read  with  attention  and  approbation.  Your  wish  re 
specting  its  republication  will  not  be  forgotten. 

The  view  you  take  of  the  edict  purporting  to  bear  date  on  the 
28th  of  April,  1811,  appears  to  me  to  be  perfectly  correct.  I 
am  astonished,  if  in  these  times  anything  ought  to  astonish, 
that  the  same  impression  is  not  made  on  all. 

Although  I  have  for  several  years  forborn  to  intermingle 
with  those  questions  which  agitate  &  excite  the  feelings  of 
party,  it  is  impossible  that  I  could  be  inattentive  to  passing 
events,  or  an  unconcerned  observer  of  them.  As  they  have  in 
creased  in  their  importance,  the  interest,  which  as  an  American 
I  must  take  in  them,  has  also  increased ;  and  the  declaration  of 
war  has  appeared  to  me,  as  it  has  to  you,  to  be  one  of  those 
portentous  acts  which  ought  to  concentrate  on  itself  the  efforts 
of  all  those  who  can  take  an  active  part  in  rescuing  their 
country  from  the  ruin  it  threatens.  All  minor  considerations 
should  be  waived ;  the  lines  of  subdivision  of  parties,  if  not 
absolutely  effaced,  should  at  least  be  covered  for  a  time;  and 
the  great  division  between  the  friends  of  peace  &  the  advocates 
of  war  ought  alone  to  remain.  It  is  an  object  of  such  magni 
tude  as  to  give  to  almost  every  other,  comparative  insignifi 
cance;  and  all  who  wish  peace  ought  to  unite  in  the  means 
which  may  facilitate  its  attainment,  whatever  may  have  been 
their  differences  of  opinion  on  other  points. 

On  reading  the  decree  of  the  28th  of  April  I  could  not  avoid 
asking  myself  questions  such  as  these. 

This  decree  having  been  obviously  fabricated  since  the  official 
declaration  of  the  Prince  Regent  that  the  orders  in  council 

34  The  above  letter  is  printed  in  The  Magazine  of  American  History, 
Vol.  XII,  p.  278. 


54  THE  POLITICAL  AND  ECONOMIC 

would  stand  repealed  so  soon  as  the  decrees  of  Berlin  &  Milan 
should  be  proved  by  an  authentic  document  to  be  revoked,  why 
was  it  not  dated  on  the  ist  of  November  1810  instead  of  the 
28th  of  April  1811  ?  Since  the  one  date  might  have  been  af 
fixed  to  it  as  readily  as  the  other,  why  was  not  that  date  affixed 
which  would  have  saved  the  feelings  of  the  American  govern 
ment  by  supporting  the  assertion  it  has  uniformly  made  in  its 
diplomatic  intercourse  with  foreign  governments,  in  its  do 
mestic  official  communications,  &  in  its  legislative  acts  ?  —  as 
sertions  on  the  truth  of  which  our  whole  system  stands  ?  Had 
France  felt  for  the  United  States  any  portion  of  that  respect 
to  which  our  real  importance  entitles  us,  would  she  have  failed 
to  give  this  proof  of  it?  But  regardless  of  the  assertion  made 
by  the  President  in  his  Proclamation  of  the  2d  of  Novr  1810. 
regardless  of  the  communications  made  by  the  Executive  to 
the  Legislature,  regardless  of  the  acts  of  Congress,  and  re 
gardless  of  the  propositions  which  we  have  invariably  main 
tained  in  our  diplomatic  intercourse  with  Great  Britain,  the 
Emperor  has  given  a  date  to  his  decree,  &  has  assigned  a  mo 
tive  for  its  enactment,  which  in  express  terms  contradict  every 
assertion  made  by  the  American  nation  throughout  all  the  de 
partments  of  its  government,  &  removed  the  foundation  on 
which  its  whole  system  has  been  erected.  The  motive  for  this 
offensive  &  contemptuous  proceeding  cannot  be  to  rescue  him 
self  from  the  imputation  of  continuing  to  enforce  his  decree 
after  their  formal  repeal,  because  this  imputation  is  precisely 
as  applicable  to  a  repeal  dated  the  28th  of  April  1811  as  to 
one  dated  the  ist  of  November  1810,  since  the  execution  of 
those  decrees  has  continued  after  the  one  date  as  well  as  after 
the  other.  Why  then  is  this  obvious  fabrication  such  as  we 
find  it?  Why  has  Mr  Barlow  been  unable  to  obtain  a  paper 
which  might  consult  the  honor  &  spare  the  feelings  of  the 
government  ?  The  answer  is  not  to  be  disguised.  Bonaparte 
does  not  sufficiently  respect  us  to  exhibit  for  our  sake,  to 
France,  to  America,  to  Britain,  or  to  the  world,  any  evidence 
of  his  having  receded  one  step  from,  the  position  he  had  taken. 
He  could  not  be  prevailed  on,  even  after  we  had  done  all  he 
required,  to  soften  any  one  of  his  acts  so  far  as  to  give  it  the 
appearance  of  his  having  advanced  one  step  to  meet  us.  That 
this  step  or  rather  the  appearance  of  having  taken  it,  might 
save  our  reputation  was  regarded  as  dust  in  the  balance.  Even 


DOCTRINES  OF  JOHN  MARSHALL  55 

now,  after  our  solemn  &  repeated  assertions  that  our  discrim 
ination  between  the  beligerants  is  founded  altogether  on  a 
first  advance  of  France, —  on  a  decisive  &  unequivocal  repeal 
of  all  her  obnoxious  decrees;  after  we  had  engaged  in  a  war 
of  the  most  calamitous  character,-  avowedly,  because  France 
had  repealed  those  decrees,  the  Emperor  scorns  to  countenance 
the  assertion  or  to  leave  it  uncontradicted.  He  avers  to  our 
selves,  to  our  selected  enemy,  &  to  the  world,  whatever  pre 
texts  we  may  assign  for  our  conduct,  he  has  in  fact  ceded 
nothing,  he  has  made  no  advance,  he  stands  on  his  original 
ground  &  we  have  marched  up  to  it.  We  have  submitted, 
completely  submitted ;  &  he  will  not  leave  us  the  poor  consola 
tion  of  concealing  that  submission  from  ourselves.  But  not 
even  our  submission  has  obtained  relief.  His  cruizers  still 
continue  to  capture,  sink,  burn,  &  destroy. 

I  cannot  contemplate  this  subject  without  excessive  mortifi 
cation  as  well  at  the  contempt  with  which  we  are  treated  as  at 
the  infatuation  of  my  countrymen.  It  is  not  however  for  me 
to  indulge  these  feelings  though  I  cannot  so  entirely  suppress 
them  as  not  sometimes  though  rarely  to  allow  them  a  place  in 
a  private  letter. 

With  respectful  esteem 

I  am  Sir  your  obedt  servt 

J    MARSHALL.35 

RICHMOND  Novr  7th  1834. 
MY  DEAR  GRANDSON  : 

I  had  yesterday  the  pleasure  of  receiving  your  letter  of  the 
2Qth  of  November,  and  am  quite  pleased  with  the  course  of 
study  you  are  pursuing.  Proficiency  in  Greek  and  Latin  is 
indispensable  to  an  accomplished  scholar,  and  may  be  of  great 
real  advantage  in  our  progress  through  human  life.  Cicero 
deserves  to  be  studied  still  more  for  his  talents  than  for  the 
improvement  in  language  to  be  derived  from  reading  him. 
He  was  unquestionably,  with  the  single  exception  of  De 
mosthenes,  the  greatest  orator  among  the  ancients.  He  was 
too  a  profound  Philosopher.  His  "  de  officiis  "  is  among  the 

35  The  above  letter  is  printed  in  The  Pennsylvania  JMagazine,  Vol. 
25,  pp.  263-265.  The  letter  was  sent  to  R.  Smith.  No  further  address  was 
given.  The  original  is  in  the  Dreer  Collection  of  the  Historical  Society 
of  Pennsylvania. 


56  THE  POLITICAL  AND  ECONOMIC 

most  valuable  treatises  I  have  ever  seen  in  the  latin  language. 

History  is  among  the  most  essential  departments  of  knowl 
edge;  and,  to  an  American,  the  histories  of  England  and  of 
the  United  States  are  most  instructive.  Every  man  ought  to 
be  intimately  acquainted  with  the  history  of  his  own  country. 
Those  of  England  and  of  the  United  States  are  so  closely  con 
nected  that  the  former  seems  to  be  introductory  to  the  latter. 
They  form  one  whole.  Hume,  as  far  as  he  goes,  to  the  revolu 
tion  of  1688,  is  generally  thought  the  best  Historian  of  Eng 
land.  Others  have  continued  his  narative  (sic)  to  a  late 
period,  and  it  will  be  necessary  to  read  them  also. 

There  is  no  exercise  of  the  mind  from  which  more  valuable 
improvement  is  to  be  drawn  than  from  composition.  In  every 
situation  of  life  the  result  of  early  practice  will  be  valuable. 
Both  in  speaking  and  writing,  the  early  habit  of  arranging  our 
thoughts  with  regularity,  so  as  to  point  them  to  the  object  to 
be  proved,  will  be  of  great  advantage.  In  both,  clearness  and 
precision  are  most  essential  qualities.  The  man  who  by  seek 
ing  embellishment  hazards  confusion,  is  greatly  mistaken  in 
what  constitutes  good  writing.  The  meaning  ought  never  to 
be  mistaken.  Indeed  the  readers  should  never  be  obliged  to 
search  for  it.  The  writer  should  always  express  himself  so 
clearly  as  to  make  it  impossible  to  misunderstand  him.  He 
should  be  comprehended  without  an  effort. 

The  first  step  towards  writing  and  speaking  clearly  is  to 
think  clearly.  Let  the  subject  be  perfectly  understood,  and  a 
man  will  soon  find  words  to  convey  his  meaning  to  others. 
Blair,  whose  lectures  are  greatly  and  justly  admired,  advises 
a  practice  well  worthy  of  being  observed.  It  is  to  take  a  page 
of  some  approved  writer  and  read  it  over  repeatedly  until  the 
matter,  not  the  words,  be  fully  impressed  on  the  mind.  Then 
write,  in  your  own  language,  the  same  matter.  A  comparison 
of  the  one  with  the  other  will  enable  you  to  remark  and  cor 
rect  your  own  defects.  This  course  may  be  pursued  after  hav 
ing  made  some  progress  in  composition.  In  the  commence 
ment,  the  student  ought  carefully  to  reperuse  what  he  has 
written,  correct,  in  the  first  instance,  every  error  of  orthog 
raphy  and  grammar.  A  mistake  in  either  is  unpardonable. 
Afterwards  revise  and  improve  the  language. 

I  am  pleased  with  both  your  pieces  of  composition.  The 
subjects  are  well  chosen  and  of  the  deepest  interest.  Hap- 


DOCTRINES  OF  JOHN  MARSHALL  57 

piness  is  pursued  by  all,  though  too  many  mistake  the  road  by 
which  the  greatest  good  is  to  be  successfully  followed.  Its 
abode  is  not  always  in  the  pallace  or  the  cottage.  Its  resi 
dence  is  the  human  heart,  and  its  inseparable  companion  is  a 
quiet  conscience.  Of  this,  Religion  is  the  surest  and  safest 
foundation.  The*  individual  who  turns  his  thoughts  fre 
quently  to  an  omnipotent  omniscient  and  all  perfect  being, 
who  feels  his  dependence  on,  and  his  infinite  obligations  to  that 
being  will  avoid  that  course  of  life  which  must  harrow  up  the 
conscience. 

My  love  to  your  mother  &  the  family 
Your  affectionate  Grandfather, 

J.  MARSHALL. 

This  letter  was  sent  to  the  editor  of  The  Nation,  by  Mr. 
William  F.  Abbot,  of  Worcester,  Massachusetts,  on  February 
2,  1901.  At  that  time  he  wrote  as  follows : 

SIR: 

I  enclose  to  you  for  publication  a  letter  of  John  Marshall's, 
the  original  of  which  is  in  my  possession,  and,  so  far  as  I 
know,  has  never  been  printed  before.  It  is  addressed  to : 

"  Mr.  John  Marshall  Jr. 

"  of  Mont  blanc 

"  near  Oak  hill 

"  Fauquier." 

It  is  postmarked  "  Richmond,  Va.,  Dec.  8."  This,  with  the 
allusion  to  his  grandson's  letter  of  November  29,  shows  that 
its  date  should  be  December  7  instead  of  November  7.  It  is 
of  great  interest  as  showing  the  great  jurist's  ideas  on  educa 
tion. 

LETTER  36  OF  JOHN  MARSHALL  TO  JOHN  ADAMS 

4  February  1801. 
SIR: 

I  pray  you  to  accept  my  grateful  acknowledgement  for  the 
honor  conferred  on  me  in  appointing  me  Chief  Justice  of  the 
United  States.  This  additional  and  flattering  mark  of  your 

36  The  above  letter  is  printed  in  the  "  Life  and  Works  of  John  Adams," 
Vol.  IX,  p.  96. 


58  THE  POLITICAL  AND  ECONOMIC 

good  opinion  has  made  an  impression  on  my  mind  which  time 
will  not  efface. 

I  shall  enter  immediately  on  the  duties  of  the  office  and  hope 
never  to  give  you  occasion  to  regret  having  made  the  appoint 
ment. 

With  the  most  respectful  attachment  &c 

J.  MARSHALL. 

JOHN  MARSHALL  a?  TO  JAMES  MONROE 

RICHMOND,  2  December  1784. 
DEAR  SIR: 

Yours  of  the  fourteenth  of  November  I  have  just  received. 
I  congratulate  you  sincerely  on  your  safe  return  to  the  At 
lantic  part  of  the  world.  I  wish  with  you  that  our  assembly 
had  never  passed  those  resolutions  respecting  the  British  debts 
which  have  been  so  much  the  subject  of  reprehension  through 
out  the  states.  I  wish  it,  because  it  affords  a  pretext  to  the 
British  to  retain  possession  of  the  forts  on  the  lakes,  but  much 
more  because  I  ever  considered  it  as  a  measure  tending  to 
weaken  the  federal  bands,  which  in  my  conception  are  too 
weak  already.  We  are  about,  though  reluctantly,  to  correct 
the  error.  Some  resolutions  have  passed  a  committee  of  the 
whole  house,  on  which  a  bill  is  to  be  brought  in  removing  all 
impediments  in  the  way  of  the  treaty,  and  directing  the  pay 
ment  of  debts  by  installments.  The  resolutions  were  intro 
duced  by  your  uncle.  As  the  bill  at  present  stands,  there  are 
to  be  seven  annual  payments,  the  first  to  commence  in  April, 
1786.  We  have  as  yet  done  nothing  finally.  Not  a  bill  of 
public  importance,  in  which  an  individual  was  not  particularly 
interested,  has  passed.  The  exclusive  privilege  given  to  Rum- 
sey  and  his  assigns  to  build  and  navigate  his  new  invented 
boats  is  of  as  much,  perhaps  more,  consequence  than  any  other 
bill  we  have  passed.  We  have  rejected  some  which  in  my  con 
ception  would  have  been  advantageous  to  this  country. 
Among  these  I  rank  the  bill  for  encouraging  intermarriages 
with  the  Indians.  Our  prejudices,  however,  oppose  them 
selves  to  our  interests,  and  operate  too  powerfully  for  them. 
The  two  subjects  which  now  most  engross  the  attention  o<f  the 
legislature  are  the  general  assessment  and  circuit  court  bills. 

37  The  above  letter  is  printed  in  Bancroft's  "  History  of  the  Constitu 
tion  of  the  United  States,"  Vol.  II. 


DOCTRINES  OF  JOHN  MARSHALL  59 

I  am  apprehensive  they  will  both  be  thrown  out.  When  sup 
ported  by  all  the  oratory  and  influence  of  Mr.  Henry,  the 
former  could  scarcely  gain  admission  into  the  house;  and 
now,  when  he  is  about  moving  in  a  sphere  of  less  real  im 
portance  and  power,  his  favorite  measure  must  miscarry.  I 
am  sorry  the  members  of  council  were  appointed  before  your 
letter  recommending  Colonel  Mercer  had  reached  me.  Had 
I  known  that  that  gentleman  wished  an  appointment  in  the 
executive,  I  should  certainly  not  have  been  unmindful  of  the 
debt  I  contracted  with  him  on  a  former  similar  occasion.  Mr. 
Jones  supplies  the  vacancy  made  by  the  resignation  of  Mr. 
Short,  and  Mr.  Roane  and  Mr.  Selden  take  the  places  of  our 
old  friend  Smith,  and  of  Colonel  Christian.  I  exerted  myself, 
though  ineffectually,  for  Carrington.  He  was  excessively 
mortified  at  his  disappointment,  and  the  more  as  he  was  within 
one  vote  of  Selden,  and  as  that  vote  was  lost  by  the  careless 
ness  of  Colonel  Jack  Nicholas,  who  walked  out  just  as  we 
were  about  to  ballot  the  last  time,  and  did  not  return  till  it 
was  too  late  to  admit  his  ticket.  I  endeavored,  too,  to  pro 
mote  the  interests  of  your  friend  Wilson  Nicholas,  who  is  just 
about  to  form  a  matrimonial  connection  with  Miss  Smith,  of 
Baltimore ;  but  he  was  distanced.  I  showed  my  father  that 
part  of  your  letter  which  respects  the  western  country.  He 
says  he  will  render  you  every  service  of  the  kind  you  mention 
which  is  within  his  power  with  a  great  deal  of  pleasure.  He 
says,  though,  that  Mr.  Humphrey  Marshall,  a  cousin  and 
brother  of  mine,  is  better  acquainted  with  the  lands,  and 
would  be  better  enabled  to  choose  for  your  advantage  than  he 
would.  If,  however,  you  wish  rather  to  depend  on  my  father, 
I  presume  he  may  avail  himself  of  the  knowledge  of  his  son-in- 
law.  I  do  not  know  what  to  say  to  your  scheme  of  selling  out. 
If  you  can  execute  it,  you  will  have  made  a  very  capital  sum ;  if 
you  retain  your  lands,  you  will  be  poor  during  life,  unless  you 
remove  to  the  western  country,  but  you  will  have  secured  for 
posterity  an  immense  fortune.  I  should  prefer  the  selling 
business,  and,  if  you  adopt  it,  I  think  you  have  fixed  on  a  very 
proper  price. 

Adieu. 
May  you  be  very  happy  is  the  wish  of  your 

J.  MARSHALL. 


60  THE  POLITICAL  AND  ECONOMIC 

RICHMOND,  March  29,  1832. 
DEAR  SIR: 

Your  letter  of  the  25th  reached  me  last  night.  The  transac 
tion  concerning  which  you  enquire  passed  in  the  following 
manner.  As  the  stage  passed  through  Philadelphia  some  pas 
senger  mentioned  to  a  friend  he  saw  in  the  street  the  death  of 
General  Washington.  The  report  flew  to  the  hall  of  Con 
gress  and  I  was  asked  to  move  an  adjournment.  I  did  so. 
General  Lee  was  not  at  the  time  in  the  House.  On  receiv 
ing  the  intelligence,  which  he  did  on  the  first  arrival  of  the 
stage,  he  retired  to  his  room  and  prepared  the  resolutions  which 
were  adopted,  with  the  intention  of  offering  them  himself. 
But  the  house  of  Representatives  had  risen  on  my  motion,  and 
it  was  expected  by  all  that  I  would  on  the  next  day  announce 
the  lamented  event  and  propose  resolutions  adapted  to  the  oc 
casion.  General  Lee  immediately  called  on  me  and  shewed  me 
his  resolutions.  He  said  it  had  now  become  improper  for 
him  to  offer  them,  and  wished  me  to  take  them.  As  I  had 
not  written  anything  myself  and  was  pleased  with  his  resolu 
tions,  which  I  entirely  approved,  I  told  him  I  would  offer  them 
the  next  day,  when  I  should  state  to  the  House  of  Representa 
tives  the  confirmation  of  the  melancholy  intelligence  received 
the  preceding  day.  I  did  so.  You  will  see  the  fact  stated  in 
a  note  to  the  preface  to  the  Life  of  Washington,  p.  v,  and 
again  in  a  note  to  the  5th  vol,  p  765. 

J.  MARSHALL.  38 

LETTER  OF  JOHN  MARSHALL  TO  HIS  SON, 
EDWARD  C.  MARSHALL 

WASHINGTON,  Feb.  15,  1832. 
MY  DEAR  SON  : 

Your  letter  of  the  loth  gave  me  great  pleasure,  because  it 
assured  me  of  the  health  of  your  family  and  the  health  of  the 
other  families  in  which  I  take  so  deep  an  interest.  My  own 
has  improved.  I  strengthen  considerably,  and  am  able,  with 
out  fatigue,  to  walk  to  court,  a  distance  of  two  miles,  and  re 
turn  to  dinner.  At  first  this  exercise  was  attended  with  some 
difficulty,  but  I  feel  no  inconvenience  from  it  now.  The  sym- 

38  The  above  letter  is  printed  in  "  The  Writings  of  George  Washington," 
Vol.  XIV,  p.  262,  footnote.  This  letter  was  written  by  Judge  Marshall  to 
Charles  \V.  Hansen. 


DOCTRINES  OF  JOHN  MARSHALL  61 

pathetic  feeling  to  which  you  allude  sustains  no  diminution ;  I 
fear  it  never  will.  I  perceive  no  symptoms,  and  I  trust  I  never 
shall,  of  returning  disease.  The  question  of  Mr.  Van  Buren's 
nomination  (minister  to  England)  was  not  exempt  from  diffi 
culty.  Those  who  opposed  him,  I  believe,  thought  conscien 
tiously  that  his  appointment  ought  not  to  be  confirmed.  They 
felt  a  great  hostility  to  that  gentleman  from  other  causes  than 
his  letters  to  Mr.  McLane.  They  believe  him  to  have  been  at 
the  bottom  of  a  system  which  they  condemn.  Whether  this 
conviction  be  well  or  ill  founded,  it  is  their  conviction ;  at 
least  I  believe  it  is.  In  such  a.  case  it  is  extremely  difficult,  al 
most  impossible,  for  any  man  to  separate  himself  from  his 
party. 

This  session  of  Congress  is  indeed  peculiarly  interesting. 
The  discussion  of  the  tariff  and  on  the  bank,  especially,  will,  I 
believe,  call  forth  an  unusual  display  of  talents.  I  have  no 
hope  that  any  accommodation  can  take  place  on  the  first  ques 
tion.  The  bitterness  of  party  spirit  on  that  subject  threatens 
to  continue  unabated.  There  seems  to  be  no  prospect  of  allay 
ing  it.  The  two  great  objects  in  Virginia  are  internal  im 
provements  and  our  coloured  population.  On  the  first,  I 
despair.  On  the  second,  we  might  do  much  if  our  unfortu 
nate  political  prejudices  did  not  restrain  us  from  asking  the 
aid  of  the  Federal  Government.  As  far  as  I  can  judge,  that 
aid,  if  asked,  would  be  freely  and  liberally  given.  The  associa 
tion  you  speak  of,  if  it  could  be  made  extensive,  might  be  of 
great  utility,  and  I  would  suggest  the  addition  of  a  resolution 
not  to  bring  any  slave  into  the  country. 
I  am,  my  dear  son, 

Your  affectionate  father, 

J.  MARSHALL. 

LETTER  FROM  JOHN  MARSHALL  TO  HIS  GRANDSON 

WASHINGTON,  March  n,  1835. 
MY  DEAR  GRANDSON  : 

I  have  received  your  letter  of  the  25th  of  February,  and  am 
not  a  little  gratified  at  the  account  you  give  of  your  standing 
in  your  class.  It  does  you  great  honor  as  a  student  to  remain 
so  long  at  the  head  of  it. 

Cicero  was  an  elegant  scholar,  and  the  greatest  orator  of 


62  THE  POLITICAL  AND  ECONOMIC 

his  day.     Besides  his  orations  he  has  written  several  essays 
which  have  attracted  much  admiration. 

I  am  very  glad  to  hear  of  your  progress  in  arithmetic,  and 
to  see  that  you  improve  in  your  handwriting.  It  is  a  fault 
which,  I  am  glad  to  believe,  you  will  not  commit.  You  have 
had  a  very  severe  winter,  but  that  is  unfavorable  to  study.  If 
you  have  been  unable  to  go  to  school,  the  time,  I  am  sure,  has 
not  been  lost.  Nothing  is  more  precious  than  time,  especially 
to  the  young,  and  yet  nothing  slips  from  us  less  regarded  or  less 
valued.  I  am,  my  dear  grandson, 

Your  affectionate  grandfather, 

J.  MARSHALL. 

LETTER  FROM  JOHN  MARSHALL  TO  HIS  SON,  JAMES  KEITH 
MARSHALL,  OF  FAUQU'IER  COUNTY,  VIRGINIA 

RICHMOND,  December  14,  1828. 
MY  DEAR  SON  : 

You  hogs  arrived  on  Wednesday  evening.  I  had  twelve  of 
them  killed  on  Friday  morning.  They  weighed  1891.  The 
remaining  thirteen  will  be  killed  as  soon  as  the  weather  will 
permit,  perhaps  to-morrow,  but  the  weather  I  fear  is  too  hot. 
I  fear  you  will  be  disappointed  in  the  price.  It  is  four  dol 
lars  only.  An  immense  quantity  has  come  in  from  the  West. 
I  shall  give  you  four  and  a  quarter,  and  take  myself  what  I 
cannot  sell  at  that  price.  As  I  know  nothing  about  the  title 
to  the  land  in  question,  I  presume  your  object  is  to  make  some 
inquiries  respecting  the  characters  of  Mr.  M.  and  Mr.  A.  Of 
Mr.  A.,  I  know  nothing.  Mr.  M.  is  a  lawyer  of  eminence, 
who  was  formerly  a  judge.  He  unfortunately  engaged  in 
some  purchases  in  the  mad  times  that  have  gone  by,  which 
wasted  his  fortune,  in  consequence  of  which  he  resigned  his 
seat  on  the  bench  and  returned  to  the  bar.  He  is  a  sensible 
man,  and  I  should  place  confidence  in  what  he  says.  Were 
it  my  business  I  should  procure  the  information  he  asks  and 
give  him  a  moiety  of  the  land  if  he  will  prosecute  the  claim 
at  his  own  expense.  I  should  have  feared  that  the  act  of 
limitations  was  already  a  bar,  but  Mr.  M.'s  judgment  may  be 
relied  on.  You  mother's  love  to  the  family. 
I  am,  my  dear  son, 

Your  affectionate  father, 

J.  MARSHALL. 


DOCTRINES  OF  JOHN  MARSHALL  63 

When  absent  from  his  wife,  Chief  Justice  Marshall,  a  most 
dutiful  husband,  wrote  to  her  quite  frequently,  cheering  her 
weary  hours  of  pain  with  graphic  and  lively  sayings  and  do 
ings  at  the  nation's  capital.  He  usually  called  his  wife  Polly. 

The  following  is  a  part  of  a  letter  to  Mrs.  Mary  W.  Marshall, 
Richmond,  Virginia : 

WASHINGTON,  Feb.,  1829. 

Our  sick  judges  have  at  length  arrived  and  we  are  as  busy 
as  men  can  well  be. 

I  do  not  walk  so  far  as  I  formerly  did,  but  I  still  keep  up 
the  pastime  of  walking  in  the  morning.  We  dined  on  Fri 
day  last  with  the  President,  and  I  sat  between  Mrs.  Adams 
and  the  lady  of  a  member  of  Congress  whom  I  found  quite 
agreeable  as  well  as  handsome.  Mrs.  Adams  was  as  cheer 
ful  as  if  she  was  to  continue  in  the  great  house  for  the  ensuing 
four  years.  The  President  also  is  in  good  health  and  spirits. 
I  perceive  no  difference  in  consequence  of  the  turn  the  late 
election  has  taken.  General  Jackson  is  expected  in  the  city 
within  a  fortnight  and  is  to  put  up  in  this  house.  I  shall,  of 
course,  wait  on  him.  It  is  said  he  feels  the  loss  of  Mrs. 
Jackson  very  seriously.  It  would  be  strange  if  he  did  not. 
A  man  who  at  his  age  loses  a  good  wife  loses  a  friend  whose 
place  cannot  be  supplied.  I  dine  to-morrow  with  the  Brit 
ish  Minister  and  the  next  day  again  with  the  President.  I 
have  never  before  dined  with  the  President  twice  during  the 
same  session  of  the  Court.  That  on  Friday  was  an  official 
dinner.  The  invitation  for  Tuesday  is  not  for  all  the  other 
judges,  and  I  consider  it  a  personal  civility.  Tell  Mr.  Call 
all  the  Secretaries  are  sick,  and  Mr.  Clay  among  them.  He 
took  cold  by  attending  the  Colonization  Society  and  has  been 
indisposed  ever  since.  The  town,  it  is  said,  was  never  so  full 
as  at  present.  The  expectation  is  that  it  will  overflow  on 
the  3d  of  March.  The  whole  world,  it  is  said,  will  be  here. 
This,  however,  will  present  no  temptation  to  you  to  come.  I 
wish  I  could  leave  it  all  and  come  to  you.  How  much  more 
delightful  would  it  be  to  sit  by  you  than  to  witness  all  the 
pomp  and  parade  of  the  inauguration.39 

39  The  above,  a  part  of  a  letter,  was  contributed  to  the  Green  Bag  by 
Sallie  E.  Marshall,  a  great-granddaughter  of  the  Chief  Justice.  It  is 
printed  in  the  December  number,  1896. 


64  THE  POLITICAL  AND  ECONOMIC 

From  1788  to  1797  Marshall  practiced  law  with  the  earnest 
desire,  as  he  said,  to  accumulate  sufficient  fortune  to  insure 
the  comfort  and  happiness  of  his  wife  and  children.  About 
this  time  he  wrote  the  following  letter. 

LETTER  FROM  JOHN  MARSHALL  TO 
JUDGE  ARCHIBALD  STUART 

I  cannot  appear  for  Donaghoe.  I  do  not  decline  his  busi 
ness  from  any  objection  to  his  bank.  To  that  I  should  like 
very  well  to  have  free  access,  and  would  certainly  discount 
from  it  as  largely  as  he  would  permit ;  but  I  am  already  fixed 
by  Rankin,  and  as  those  who  are  once  in  the  bank  do  not,  I 
am  told,  readily  get  out  again,  I  despair  of  being  ever  able  to 
touch  the  guineas  of  Donaghoe. 

Shall  we  never  see  you  again  in  Richmond?  I  was  very 
much  rejoiced  when  I  heard  that  you  were  happily  married, 
but  if  that  amounts  to  a  ne  exeat,  which  is  to  confine  you 
entirely  to  your  side  of  the  mountain,  I  shall  be  selfish  enough 
to  regret  your  good  fortune,  and  almost  to  wish  you  had 
found  some  little  crooked  rib  among  the  fish  and  oysters  which 
would  once  a  year  drag  you  into  this  part  of  our  terraqueous 
globe. 

You  have  forgotten,  I  believe,  the  solemn  compact  we  made 
to  take  a  journey  to  Philadelphia  this  winter,  and  superintend 
for  a  while  the  proceedings  of  Congress.  I  wish  very  much 
to  see  you.  I  want  to  observe  how  much  honester  men  you 
and  I  are  (than)  half  one's  acquaintance.  Seriously,  there 
appears  to  me  every  day  to  be  more  folly,  envy,  malice,  and 
damned  rascality  in  the  world  than  there  was  the  day  before; 
and  I  do  verily  begin  to  think  that  plain,  downright  honesty 
and  unintriguing  integrity  will  be  kicked  out  of  doors. 

We  fear,  and  not  without  reason,  a  war.     The  man  does 
not  live  who  wishes  for  peace  more  than  I  do,  but  the  out 
rages  committed  upon  us  are  beyond  human  bearing. 
Farewell. 

Pray  heaven  we  may  weather  the  storm. 

Yours, 

J.    MARSHALL.40 

40  The  fashion  of  Marshall's  wit  and  a  glimpse  of  his  friendly  geniality 
are  shown  in  the  above  letter.  This  letter  is  published  in  the  Green  Bag, 
Vol.  10. 


DOCTRINES  OF  JOHN  MARSHALL  65 

EXTRACT  OF  A  LETTER 

From  John  Marshall,  Esq.,  Secretary  of  State,  to  Rufus  King,  Minister 
Plenipotentiary  of  the  United  States  at  London 

DEPARTMENT  OF  STATE,  September  20,  1800. 

The  impressment  of  our  seamen  is  an  injury  of  very  serious 
magnitude,  which  deeply  affects  the  feelings  and  the  honour 
of  the  nation. 

This  valuable  class  of  men  is  composed  of  natives  and 
foreigners  who  engage  voluntarily  in  our  service. 

No  right  has  been  asserted  to  impress  the  natives  of  Amer 
ica.  Yet  they  are  impressed,  they  are  dragged  on  board 
British  ships  of  war,  with  the  evidence  of  citizenship  in  their 
hands,  and  forced  by  violence  there  to  serve,  until  conclusive 
testimonials  of  their  birth  can  be  obtained.  These  must  most 
generally  be  sought  for  on  this  side  of  the  Atlantick.  In  the 
mean  time  acknowledged  violence  is  practised  on  a  free  citizen 
of  the  United  States,  by  compelling  him  to  engage,  and  to 
continue  in  foreign  service.  Although  the  lords  of  the  ad 
miralty  uniformly  direct  their  discharge  on  the  production 
of  this  testimony,  yet  many  must  perish  unrelieved,  and  all 
are  detained  a  considerable  time  in  lawless  and  injurious  con 
finement. 

It  is  the  duty  as  well  as  the  right  of  a  friendly  nation,  to  re 
quire  that  measures  be  taken  by  the  British  government  to 
prevent  the  continued  repetition  of  such  violence  by  its  agents. 
This  can  only  be  done  by  punishing  and  frowning  on  those 
who  perpetrate  it.  The  mere  release  of  the  injured,  after  a 
long  course  of  service  and  of  suffering  is  no  compensation  for 
the  past,  and  no  security  for  the  future.  It  is  impossible  not 
to  believe,  that  the  decisive  interference  of  the  government 
in  this  respect,  would  prevent  a  practice,  the  continuance  of 
which  must  inevitably  produce  discord  between  two  nations 
which  ought  to  be  the  friends  of  each  other. 

Those  seamen,  who,  born  in  a  foreign  country,  have  been 
adopted  by  this,  were  either  the  subjects  of  Britain  or  some 
other  power. 

The  right  to  impress  those  who  were  British  subjects  has 
been  asserted,  and  the  right  to  impress  those  of  every  other 
nation  has  not  been  disclaimed. 

Neither  the  one  practice  nor  the  other  can  be  justified. 

With  the  naturalization  of  foreigners,  no  other  nation  can 


66  THE  POLITICAL  AND  ECONOMIC 

interfere  further  than  the  rights  of  that  other  are  affected. 
The  rights  of  Britain  are  certainly  not  affected  by  the  nat 
uralization  of  other  than  British  subjects.  Consequently  those 
persons  who,  according  to  our  laws,  are  citizens,  must  be  so 
considered  by  Britain,  and  by  every  other  power  not  having 
a  conflicting  claim  to  the  person. 

The  United  States  therefore  require  positively,  that  their 
seamen  who  are  not  British  subjects,  whether  born  in  Amer 
ica  or  elsewhere,  shall  be  exempt  from  impressments. 

The  case  of  British  subjects,  whether  naturalized  or  not, 
is  more  questionable;  but  the  right  even  to  impress  them  is 
denied.  The  practice  of  the  British  government  itself,  may 
certainly  in  a  controversy,  with  that  government,  be  relied  on. 
The  privileges  it  claims  and  exercises  ought  to  be  ceded  to 
others.  To  deny  this  would  be  to  deny  the  equality  of  na 
tions,  and  to  make  it  a  question  of  power  and  not  of  right. 

If  the  practice  of  the  British  government  may  be  quoted, 
that  practice  is  to  maintain  and  defend  in  their  sea  service  all 
those,  of  any  nation,  who  have  voluntarily  engaged  in  it,  or 
who,  according  to  their  laws,  have  become  British  subjects. 

Alien  seamen,  not  British  subjects,  engaged  in  our  mer 
chant  service,  ought  to  be  equally  exempt  with  citizens  from 
impressments :  we  have  a  right  to  engage  them,  and  have  a 
right  too  and  an  interest  in  their  persons  to  the  extent  of  the 
service  contracted  to  be  performed.  Britain  has  no  pretext 
of  right  to  their  persons  or  to  their  service.  To  tear  them, 
then,  from  our  possession,  is  at  the  same  time  an  insult  and 
an  injury.  It  is  an  act  of  violence  for  which  there  exists  no 
palliative. 

We  know  well  that  the  difficulty  of  distinguishing  between 
native  Americans  and  British  subjects  has  been  used,  with 
respect  to  natives,  as  an  apology  for  the  injuries  complained 
of.  It  is  not  pretended  that  this  apology  can  be  extended  to 
the  case  of  foreigners,  and  even  with  respect  to  natives  we 
doubt  the  existence  of  the  difficulty  alleged.  We  know  well 
that  among  that  class  of  people  who  are  seamen,  we  can 
readily  distinguish  between  a  native  American  and  a  person 
raised  to  manhood  in  Great  Britain  or  Ireland;  and  we  do  not 
perceive  any  reason  why  the  capacity  of  making  this  dis 
tinction  should  not  be  possessed  in  the  same  degree  by  one 
nation  as  by  the  other. 


DOCTRINES  OF  JOHN  MARSHALL  67 

If,  therefore,  no  regulation  can  be  formed  which  shall  ef 
fectually  secure  all  seamen  on  board  American  merchantmen, 
we  have  a  right  to  expect  from  the  justice  of  the  British  gov 
ernment,  from  its  regard  for  the  friendship  of  the  United 
States  and  its  own  honour,  that  it  will  manifest  the  sincerity 
of  its  wishes  to  repress  this  offense,  by  punishing  those  who 
commit  it. 

We  hope,  however,  that  an  agreement  may  be  entered  into 
satisfactory  and  beneficial  to  both  parties.  The  article  which 
appears  to  have  been  transmitted  by  my  predecessor,  while 
it  satisfies  this  country,  will  probably  restore  to  the  naval 
service  of  Britain  a  greater  number  of  seamen  than  will  be 
lost  by  it.  Should  we  even  be  mistaken  in  this  calculation, 
yet  the  difference  cannot  be  put  in  competition  with  the  mis 
chief  which  may  result  from  the  irritation  justly  excited,  by 
this  practice,  throughout  the  United  States.  The  extent  and 
the  justice  of  the  resentments  it  produces,  may  be  estimated, 
in  Britain,  by  inquiring  what  impressions  would  be  made 
on  them  by  similar  conduct  on  the  part  of  this  govern 
ment. 

Should  we  impress  from  the  merchant  service  of  Britain, 
not  only  Americans  but  foreigners,  and  even  British  sub 
jects,  how  long  would  such  a  course  of  injury  unredressed 
be  permitted  to  pass  unrevenged?  How  long  would  the  gov 
ernment  be  content  with  unsuccessful  remonstrance  and  un 
availing  memorials? 

I  believe,  sir,  that  only  the  most  prompt  correction  of,  com 
pensation  for,  the  abuse,  would  be  admitted  as  satisfaction  in 
such  a  case. 

If  the  principles  of  this  government  forbid  it  to  retaliate 
by  impressions,  there  is  yet  another  mode  which  might  be  re 
sorted  to.  We  might  authorize  our  ships  of  war,  though  not 
to  impress,  yet  to  recruit  sailors  on  board  British  merchant 
men.  Such  are  the  inducements  to  enter  into  our  naval  serv 
ice  that  we  believe  even  this  practice  would  very  seriously  af 
fect  the  navigation  of  Britain.  How,  sir,  would  it  be  re 
ceived  by  the  British  nation  ? 

Is  it  not  more  advisable  to  desist  from,  and  to  take  ef 
fectual  measures  to  prevent,  an  acknowledged  wrong, 
than  by  perseverance  in  that  wrong  to  excite  against  them 
selves  the  well  founded  resentments  of  America,  and  force 


68  THE  POLITICAL  AND  ECONOMIC 

our  government  into  measures  which  may  very  possibly  ter 
minate  in  an  open  rupture. 

J.    MARSHALL.41 

EXTRACT  FROM  A  LETTER  « 
From  Mr.  Marshall,  Secretary  of  State,  to  Mr.  King 

September  20,  1800. 

The  right  to  confiscate  vessels  bound  to  a  blockaded  port 
has  been  unreasonably  extended  to  cases  not  coming  within 
the  rule  as  heretofore  adopted. 

On  principle,  it  might  be  well  questioned,  whether  this  rule 
can  be  applied  to  a  place  not  completely  invested  by  land  as 
well  as  by  sea.  If  we  examine  the  reasoning  on  which  is 
founded  the  right  to  intercept  and  confiscate  supplies  designed 
for  a  blockaded  town,  it  will  be  difficult  to  resist  the  convic 
tion  that  its  extension  to  towns  invested  by  sea  only  is  an 
unjustifiable  encroachment  on  the  rights  of  neutrals.  But  it 
is  not  of  this  departure  from  principle  (a  departure  which  has 
received  some  sanction  from  practice)  that  we  mean  to  com 
plain.  It  is,  that  ports,  not  effectually  blockaded  by  a  force 
capable  of  completely  investing  them,  have  yet  been  declared 
in  a  state  of  blockade,  and  vessels  attempting  to  enter  therein 
have  been  seized,  and,  on  that  account,  confiscated. 

This  is  a  vexation  proceeding  directly  from  the  Government, 
and  which  may  be  carried,  if  not  resisted,  to  a  very  injurious 
extent.  Our  merchants  have  greatly  complained  of  it  with 
respect  to  Cadiz  and  the  ports  of  Holland. 

If  the  effectiveness  of  the  blockade  be  dispensed  with,  then 
every  port  of  all  the  belligerent  Powers  may,  at  all  times,  be 
declared  in  that  state,  and  the  commerce  of  neutrals  be  thereby 
subjected  to  universal  capture.  But  if  this  principle  be  strictly 
adhered  to,  the  capacity  of  blockade  will  be  limited  by  the 
naval  force  of  the  belligerent,  and,  of  consequence,  the  mis 
chief  to  neutral  commerce  cannot  be  very  extensive.  It  is, 

41  The  above  letter  is  printed  in  "  State  Papers  and  Publick  Documents  " 
of  the  United  States,  from  the  accession  of  George  Washington  to  the 
Presidency,   exhibiting   a   complete   view   of    our    foreign    relations    since 
that  time.     Second  edition,  Vol.   IX.     Boston,  printed   and  published  by 
T.  B.  Wait  and  Son,  1817,  pp.  23-26. 

42  The  above  letter  is  printed  in  the  "  American  State  Papers,"  Class  I, 
Vol.  Ill,  pp.  370-371. 


DOCTRINES  OF  JOHN  MARSHALL  69 

therefore,  of  the  last  importance  to  neutrals,  that  this  prin 
ciple  be  maintained  unimpaired. 

I  observe  that  you  have  passed  this  reasoning  on  to  the 
British  minister,  who  replies,  that  an  occasional  absence  of  a 
fleet  from  a  blockaded  port  ought  not  to  change  the  state  of 
the  place. 

Whatever  force  this  observation  may  be  entitled  to  where 
that  occasional  absence  has  been  produced  by  accident,  as  a 
storm,  which  for  a  moment  blows  off  the  fleet  and  forces  it 
from  its  station,  which  station  it  immediately  resumes,  I  am 
persuaded  that  where  a  part  of  the  fleet  is  applied,  though  only 
for  a  time,  to  other  objects,  or  comes  into  port,  the  very  prin 
ciple  requiring  an  effective  blockade,  which  is,  that  the  mis 
chief  can  then  only  be  co-extensive  with  the  naval  force  of 
the  beliggerent,  requires  that  during  such  temporary  absence 
the  commerce  of  neutrals  to  the  place  should  be  free. 

LETTER^  FROM  JOHN  MARSHALL  TO  THE  PRESIDENT  OF 

THE  UNITED  STATES 
Communicated  to  the  House  of  Representatives,  February  27,  1801 

DEPARTMENT  OF  STATE,  February  27,  1801. 
SIR: 

The  order  of  the  House  of  Representatives  of  the  24th  of 
this  month,  requesting  an  account  of  the  depredations  com 
mitted  on  the  commerce  of  the  United  States  by  vessels  of 
Great  Britain,  of  which  complaint  has  been  made  to  the  Gov 
ernment,  having  been  referred  to  this  department,  I  have  the 
honor  to  transmit  herewith  an  abstract  of  such  cases  as  have 
been  complained  of  since  the  commencement  of  the  year  1800. 

The  order  of  the  House  having  fixed  no  period  at  which 
the  account  it  requests  is  to  commence,  I  have,  from  a  con 
sideration  of  the  short  space  for  which  the  present  session 
can  continue,  thought  it  compatible  with  their  view  to  limit 
the  abstract  to  the  time  above  mentioned. 

From  various  reasons,  it  is  to  be  presumed  that  many  cap 
tures  have  been  made,  of  which  no  complaint  has  been  for 
warded  to  the  Government.  Under  this  impression,  and  for 
the  purpose  of  giving  a  comprehensive  view  of  the  subject, 

43  The  above  letter  is  printed  in  the  "  American  State  Papers,"  Class  I, 
Vol.  II,  "  Foreign  Relations,"  p.  345. 


70  THE  POLITICAL  AND  ECONOMIC 

I  have  thought  it  not  improper  to  annex  to  the  abstract  several 
extracts  of  letters  from  our  consuls,  and  also  an  extract  of  a 
letter  from  the  President  of  the  Chamber  of  Commerce  at 
Philadelphia  to  the  Secretary  of  the  Navy. 

I  will  also  take  the  liberty  to  observe,  that  neither  the  com 
munications  from  our  minister  at  London,  nor  my  conversa 
tions  with  the  charge  d'affaires  of  his  Britannic  Majesty  in  the 
United  States,  would  lead  to  an  opinion  that  any  additional 
orders  have  been  lately  given  by  the  British  Government, 
authorizing  the  system  of  depredation  alluded  to  in  the  let 
ter  from  Mr.  Fitzsimmons. 

I  am,  sir,  &c. 

J.  MARSHALL. 

THE  PRESIDENT  OF  THE  UNITED  STATES. 

DEPARTMENT  OF  STATE,  February  27,  1801. 
SIR: 

In  my  report  of  this  day  to  the  President,  on  the  subject  of 
British  captures,  which  he  will  have  transmitted  to  Congress, 
it  was  accidentally  omitted  to  insert  the  case  of  the  brigantine 
Ruby,  Captain  Wrigley,  belonging  to  Mr.  Ambrose  Vasse,  of 
Philadelphia.  This  vessel,  proceeding  for  Port-au-Prince, 
with  a  cargo  consisting  of  American  produce  and  some » Ger 
man  goods,  was  lately  captured  by  the  British  ship  of  war 
Tisiphone,  and  carried  to  Jamaica,  where,  the  owner  informs 
me,  both  vessel  and  cargo  were  condemned  as  enemy's  prop 
erty. 

I  therefore  request  that  the  House  will  consider  this  letter 
as  an  appendage  to  my  report  above  alluded  to. 

I  have  the  honor  to  be,  &c. 

J.  MARSHALL.44 

THE  HONORABLE  THE  SPEAKER  OF  THE  HOUSE  OF  REPRE 
SENTATIVES. 

THE  SECRETARY  OF  STATE  TO  MR.  KING 

DEPARTMENT  OF  STATE,  August  23,  1800. 
SIR: 

Your  letters,  stating  your  negotiations  with  Lord  Gren- 
ville  respecting  the  differences  which  have  arisen  in  execut- 

44  The  above  letter  is  printed  in  the  "American  State  Papers,"  Vol.  II, 
Class  i,  p.  345. 


DOCTRINES  OF  JOHN  MARSHALL  71 

ing  the  sixth  article  of  our  treaty  of  amity,  commerce,  and 
navigation  with  Great  Britain,  have  been  laid  before,  and  con 
sidered  by,  the  President. 

He  still  retains  the  opinion  that  an  amicable  explanation  of 
that  article  is  greatly  to  be  desired;  and,  therefore,  receives 
with  much  regret  the  information,  that  the  British  Cabinet 
is  indisposed  to  enter  on  the  discussion  of  this  interesting  sub 
ject. 

He  perceives  with  a  concern,  not  entirely  unmixed  with 
other  sensations,  that  the  secession  of  two  commissioners 
from  the  Board  lately  sitting  in  Philadelphia,  has  been  attrib 
uted,  not  to  its  real  cause,  but  to  motives  which  in  no  in 
stance  have  ever  influenced  the  American  Government. 

That  Government  is,  as  it  has  ever  been,  sincerely  desirous 
of  executing,  with  perfect  and  scrupulous  good  faith,  all  its 
engagements  with  foreign  nations.  This  desire  has  contrib 
uted,  not  inconsiderably,  to  the  solicitude  it  now  manifests 
for  the  explanatory  articles  you  have  been  instructed  to  pro 
pose.  The  efforts  of  the  American  commissioners  to  pro 
ceed  and  decide  on  particular  cases,  instead  of  laying  down 
abstract  principles,  believed  to  be  untrue  in  themselves,  ought 
to  have  rescued  their  Government  from  suspicions,  so  very 
unworthy,  and  so  little  merited  by  the  general  tenor  of  its 
conduct.  The  resolutions,  maintained  by  a  majority  of  the 
late  Board  of  Commissioners,  are  such  as  the  Government 
of  the  United  States  can  never  submit  to.  They  are  con 
sidered,  not  as  constructive  of  an  existing  treaty,  but  as  im 
posing  new  and  injurious  burthens,  unwarranted  by  compact, 
and  to  which,  if  in  the  first  instance  plainly  and  intelligibly 
stated,  this  Government  never  could  and  never  would  have 
assented. 

This  opinion  is  not  lightly  taken  up;  it  is  a  deep  and  solemn 
conviction,  produced  by  the  most  mature  and  temperate  con 
sideration  we  are  capable  of  bestowing  on  the  subject. 

This  being  the  fixed  judgment  of  the  United  States,  it  is 
impossible  not  seriously  to  apprehend,  unless  we  could  for 
get  the  past,  that  no  attempt  by  arbitration  to  adjust  the 
claims  of  individuals  under  the  sixth  article  of  the  treaty, 
previous  to  an  explanation  of  it  by  the  two  Governments,  can 
be  successful.  A  second  effort  at  this  adjustment,  by  the 
proposed  modification  of  the  Board,  while  the  principles  here- 


72  THE  POLITICAL  AND  ECONOMIC 

to  fore  contended  for  receive  the  countenance  of  the  British 
Government,  would  most  probably,  unless,  indeed,  the  Board 
should  again  be  dissolved,  subject  us  to  the  painful  alternative 
of  paying  money,  which,  in  our  best  judgment,  the  commis 
sioners  had  no  power  to  award,  or  of  submitting  the  public 
faith  to  imputations  from  which  it  could  only  be  freed  by  a 
correct  and  laborious  investigation  of  the  subject.  In  such  a 
situation,  presenting  to  us  only  such  an  alternative,  we  are 
extremely  unwilling  to  be  placed. 

It  is,  then,  very  seriously  desired  that  the  explanations  re 
quired  by  this  Government  should  be  made.  They  are  be 
lieved  to  be  so  reasonable  in  themselves,  and  to  be  so  unques 
tionably  in  the  spirit,  and  to  the  full  extent  of  the  existing 
treaty,  that  it  is  hoped  the  difficulties,  on  the  part  of  the  British 
cabinet,  may  yet  be  removed. 

The  President,  therefore,  requests  that  you  will  take  any 
proper  occasion,  should  one  in  your  judgment  present  itself, 
to  renew  your  application  to  Lord  Grenville  on  this  subject. 
Perhaps  a  change  of  temper  may  be  produced  by  a  change  of 
circumstances ;  and  there  may  be  a  state  of  things  in  which  you 
may  perceive  a  disposition  favorable  to  the  accomplishment 
of  an  object  which  ought  to  be  desired  by  both  nations,  be 
cause  it  is  just  in  itself,  and  because  it  will  remove  a  subject  of 
controversy,  which  may,  in  the  course  of  events  have  a  very 
unhappy  influence  on  that  good  understanding  and  friendly 
intercourse,  which  it  is  the  interest  of  both  to  preserve. 

The  note  of  the  i8th  of  April,  addressed  to  you  by  Lord 
Grenvelle,  stating  the  determination  of  the  British  cabinet,  not 
to  modify,  but  to  reject,  without  discussion,  the  explanatory 
articles  proposed  by  you  on  the  part  of  the  United  States,  as 
sumes,  as  the  base  of  its  decision,  a  principle  not  only  so  dif 
ferent  from  those  admitted  by  this  Government,  but  so  dif 
ferent  from  those  recognized  by  both  nations  in  the  treaty 
of  amity  negotiated  between  them,  and  which  ought,  there 
fore,  to  be  adhered  to  in  all  explanations  of  that  treaty,  as  to 
warrant  a  hope  that  the  determination  announced  in  that  note 
may  not  be  unalterable. 

His  Lordship  assumes  as  a  fact  that  "  the  fourth  article  of 
the  treaty  of  peace  not  having  been  duly  executed  on  the  part 
of  the  United  States,  the  British  Government  withheld  the  de 
livery  of  the  forts  on  the  frontier  of  Canada,  in  order  that 


DOCTRINES  OF  JOHN  MARSHALL  73 

these  might  serve  as  a  pledge  for  the  interests  and  rights  se 
cured  to  the  British  creditors  under  tHat  article." 

But  this  is  a  fact  which  the  American  Government  has  ever 
controverted,  and  which  has  never  yet  been  established. 

Without  entering  into  the  always  unavailing  and  now  im 
proper  discussion  of  the  question,  which  nation  committed 
the  first  fault,  it  ought  never  to  be  forgotten  that  the  treaty  in 
which  the  claim  of  the  British  creditors,  on  the  United  States 
originated,  was  avowedly  entered  into  for  the  purpose  of 
terminating  the  difference  between  the  two  nations  "  in  such  a 
manner  as,  without  reference  to  the  merits  of  their  respective 
complaints  and  pretentious,  may  be  the  best  calculated  to  pro 
duce  mutual  satisfaction  and  good  understanding." 

In  questions  growing  out  of  such  a  treaty,  neither  nation 
can  be  permitted  to  refer  to  and  decide  the  merits  of  those 
respective  complaints  and  pretensions,  by  asserting  that  the 
other,  and  not  itself,  has  committed  the  first  fault. 

Lord  Grenville,  then,  proceeds  on  the  idea  that  the  com 
missioners  appointed  by  the  American  Government  have  with 
drawn  from  the  Board,  merely  because  awards  were  rendered 
against  their  opinion,  and  on  claims  which  they  believed  to  be 
unjust. 

But  this  idea  is  neither  warranted  by  the  conduct  or  declara 
tion  of  the  American  Commissioners,  nor  of  the  Government 
which  appointed  them.  It  has  been,  and  still  is,  expressly  dis 
avowed.  The  commissioners  and  their  Government  acquiesced 
under  opinions  which  they  conscientiously  believed  to  be 
formed  on  erroneous  principles,  but  on  principles  submitted 
by  the  treaty  to  their  decision.  Awards  conforming  to  such 
opinions,  unless  by  mutual  consent  the  subject  shall  assume 
some  other  form,  will  be  paid  by  the  United  States.  It  was 
not  until  a  majority  of  the  Board  had  proceeded  to  establish 
a  system  of  rules  for  the  Government  of  their  future  decisions, 
which,  in  the  opinion  of  this  Government,  clearly  compre 
hended  a  vast  mass  of  cases  never  submitted  to  their  consid 
eration,  that  it  was  deemed  necessary  to  terminate  proceed 
ings  believed  to  be  totally  unauthorized,  and  which  were  con 
ducted  in  terms  and  in  a  spirit  only  calculated  to  destroy  all 
harmony  between  the  two  nations. 

We  understand  the  treaty  differently  from  what  Lord  Gren 
ville  would  seem  to  understand  it,  when  he  says  the  decision 


74  THE  POLITICAL  AND  ECONOMIC 

of  the  Board,  constituted  according  to  the  provisions  of  that 
instrument,  "  was  expressly  declared  to  be  in  all  cases  final 
and  conclusive." 

These  terms  have  never  been  understood  by  us  as  authoriz 
ing  the  arbiters  to  go  out  of  the  special  cases  described  in  the 
instrument  creating  and  limiting  their  powers.  The  words 
"  all  cases  "  can  only  mean  those  cases  which  the  two  nations 
have  submitted  to  reference.  These  are  described  in  the  pre 
ceding  part  of  the  article,  and  this  description  is  relied  on,  by 
the  United  States,  as  constituting  a  boundary,  within  which 
alone  the  powers  of  the  commissioners  can  be  exercised.  This 
boundary  has,  in  our  judgment,  been  so  totally  prostrated,  that 
scarcely  a  trace  of  it  remains.  The  reasoning  on  which  we 
have  formed  this  judgment  it  would  be  unnecessary  to  detail 
to  you,  because  you  are  in  perfect  possession  of  it. 

Believing  the  British  cabinet  disposed  to  act  justly  and 
honorably  in  a  case  in  which  we  conceive  their  reputation,  as 
well  as  ours,  to  be  concerned,  we  have  been  confident  in  the 
opinion,  that  to  obtain  their  serious  attention  to  the  subjects 
of  difference  between  the  two  nations,  was  to  secure  the  es 
tablishment  of  that  reasonable  and  liberal  construction  of  the 
article  for  which  America  has  contended.  We  shall  abandon 
this  opinion  with  reluctance  and  regret. 

Although  the  President  decidedly  prefers  the  amicable  ex 
planations  which  have  been  suggested  to  any  other  mode  of 
adjusting  the  differences  which  have  arisen  in  executing  the 
sixth  article  of  our  treaty  with  Great  Britain,  yet  it  is  by  no 
means  the  only  mode  to  which  he  is  willing  to  resort.  He 
does  not  even  require  that  you  shall  press  this  proposition  in 
a  manner  which,  in  your  judgment,  may  lessen  the  probability 
of  settling  existing  differences,  or  further  than  may  comport 
with  the  interests  of  the  United  States.  Your  situation,  your 
full  and  near  view  of  all  the  circumstances  which  can  influ 
ence  the  negotiation,  enable  you  to  decide  more  certainly  than 
can  be  done  on  this  side  of  the  Atlantic,  on  the  precise  course 
which  it  may  be  most  advantageous  to  pursue.  To  your  dis 
cretion,  therefore,  the  President  entirely  submits  this  part  of 
the  subject. 

If  the  explanatory  articles  so  much  desired  by  the  United 
States  be  unattainable,  the  substitution  of  a  gross  sum,  in  full 
compensation  of  all  claims,  made  or  to  be  made  on  this  Gov- 


DOCTRINES  OF  JOHN  MARSHALL  75 

ernment,  under  the  sixth  article  of  our  treaty  of  amity,  com 
merce,  and  navigation  with  His  Britannic  Majesty,  is  deemed 
the  most  eligible  remaining  mode  of  accommodating  those 
differences  which  have  impeded  the  execution  of  that  article. 

It  is  apparent  that  much  difficulty  will  arise  in  agreeing  on 
the  sum  which  shall  be  received  as  compensation.  The  ideas 
of  the  two  Governments,  on  this  subject,  appear  so  different, 
that,  without  reciprocal  sacrifices  of  opinion,  it  is  probable  they 
will  be  as  far  from  agreeing  on  the  sum  which  ought  to  be 
received,  as  on  the  merits  of  the  claims  for  which  it  will  be 
paid.  This  difficulty  is,  perhaps,  increased  by  the  extravagant 
claims  which  the  British  creditors  have  been  induced  to  file. 
Among  them  are  cases  believed  to  be  so  notoriously  un 
founded,  that  no  commissioners  retaining  the  slightest  degree 
of  self-respect,  can  establish  them.  There  are  many  others 
where  the  debtors  are  as  competent  to  pay  as  any  inhabitants 
of  the  United  States ;  and  there  are  others  where  the  debt  has 
been  fairly  and  voluntarily  compromised  by  agreement  between 
the  creditor  and  debtor.  There  are  even  cases  where  the 
money  has  been  paid  in  specie,  and  receipts  in  full  given.  I 
do  not  mention  these  distinct  classes  as  comprehending  all  the 
cases  of  claims  filed,  which  can  never  be  allowed;  but  as  ex 
amples  of  the  materials  which  compose  that  enormous  mass  of 
imagined  debt,  which  may,  by  its  unexamined  bulk,  obstruct  a 
just  and  equitable  settlement  of  the  well-founded  claims  which 
really  exist. 

The  creditors  are  now  proceeding,  and,  had  they  not  been 
seduced  into  the  opinion  that  the  trouble  and  expense  insep 
arable  from  the  pursuit  of  old  debts  might  be  avoided  by  one 
general  resort  to  the  United  States,  it  is  believed  they  would 
have  been  still  more  rapidly  proceeding  in  the  collection  of  the 
very  claims,  so  far  as  they  are  just,  which  have  been  filed  with 
the  commissioners.  They  meet  with  no  obstructions,  either  of 
law  or  fact,  which  are  not  common  to  every  description  of 
creditors,  in  every  country,  unless  the  difficulty,  with  respect 
to  interest  during  the  war,  may  be  so  denominated.  Our 
judges  are  even  liberal  in  their  construction  of  the  fourth 
article  of  the  treaty  of  peace,  and  are  believed,  in  questions 
growing  out  of  that  treaty,  to  have  manifested  no  sort  of 
partiality  for  the  debtors.  Indeed,  it  is  believed  that,  with  the 
exception  of  the  contested  article  of  war,  interest,  and  possibly, 


76  THE  POLITICAL  AND  ECONOMIC 

of  claims  barred  by  the  act  of  limitations  during  the  war,  the 
United  States  are  justly  chargeable  with  the  debts  of  only 
such  of  their  citizens  as  have  become  insolvent  subsequent  to 
the  peace,  and  previous  to  the  establishment  of  the  federal 
courts.  This  opinion  is  founded  on  a  conviction  that  our 
judges  give  to  the  fourth  article  of  the  treaty  of  peace  a  con 
struction  as  extensive  as  ought  to  be  given  to  it  by  commis 
sioners  appointed  under  the  sixth  article  of  the  treaty  of  amity, 
commerce,  and  navigation. 

Those  who  have  attended  most  to  this  subject  are  of  opinion 
that  the  sum  which  might  properly  be  awarded  against  the 
LTnited  States  would  fall  far  short  of  any  estimate  which  has 
probably  been  made  of  it  in  England,  or  by  the  British  creditors 
or  agents  in  this  country.  We  are,  however,  sensible  that 
commissioners,  acting  within  their  powers,  may  extend  the 
sum  further  than  justice  or  a  fair  construction  of  the  article 
would  extend  it ;  and  we  have  been  taught  to  apprehend  a  con 
struction,  of  which,  at  the  ratification  of  the  treaty,  no  fear 
was  entertained.  From  this  persuasion,  and  from  a  solicitude 
to  perform  what  even  rigid  and  unfavorable  judges  may  sup 
pose  to  be  enjoined  by  good  faith,  the  interests  of  the  United 
States  may  require,  and  the  President  is,  therefore,  willing, 
that  the  agreement  should  not  be  strictly  limited  by  the  sum 
for  which,  in  our  opinion,  we  ought  to  be  liable.  He  will  be 
satisfied  with  four  millions  of  dollars.  He  will  not  consent  to 
exceed  one  million  sterling. 

If  a  gross  sum,  in  satisfaction  of  all  other  claims,  be  ac 
cepted,  you  will  of  course  stipulate  for  the  lowest  possible  sum, 
and  for  the  most  favorable  installments  which  may  be  attain 
able. 

Should  it  be  found  impossible  to  negotiate  reasonable  ex 
planatory  articles,  or  to  agree  on  a  sum  to  be  received  as  com 
pensation  for  the  claims  of  the  creditors,  much  doubt  is  enter 
tained  concerning  the  proposition  for  new  modelling  the 
Board,  as  proposed  by  the  British  minister.  While  the  Gov 
ernment  itself  professes  to  approve  the  conduct  of  its  late 
commissioners,  much  fear  is  entertained  that  their  successors 
may  bring  with  them  those  extravagant  and  totally  inadmis 
sible  opinions  which  have  dissolved  the  past,  and  will  most 
probably  dissolve  any  future  Board.  Before  the  United  States 
proceed  to  take  a  new  step  in  a  case  where  experience  has  done 


DOCTRINES  OF  JOHN  MARSHALL  77 

so  much  to  teach  them  caution,  some  assurances  of  the  temper 
in  which  the  commissioners  to  be  appointed  will  meet  ought  to 
be  received.  And  yet  we  are  not  satisfied  that  good  faith  does 
not  require  that,  notwithstanding  the  past,  we  should  consent 
to  make  a  second  effort  for  the  execution  of  the  sixth  article  of 
the  treaty,  in  the  forms  it  has  prescribed. 

On  this  part  of  the  subject,  however,  the  President  has  come 
to  no  determination;  so  soon  as  his  decision  shall  have  teen 
made  it  shall  be  communicated  to  you. 

With  very  much  respect,  &c., 

J.    MARSHALL.45 

J.  MARSHALL,  SECRETARY  OF  STATE,  TO  SAMUEL 
SITGREAVES,  ESQUIRE,  LONDON 

DEPARTMENT  OF  STATE,  December  2,  1800. 
DEAR  SIR: 

I  have  had  the  pleasure  of  receiving  your  letters  to  the 
2Qth  of  September,  and  among  them  that  of  the  23d,  enclosing 
a  copy  of  your  letter  of  the  22d  of  April,  the  original  of  which 
had  unfortunately  miscarried. 

It  is  probable  that,  before  this  can  reach  you,  the  negotiation 
respecting  the  sixth  article  of  our  treaty  of  amity,  commerce, 
and  navigation  with  Great  Britain  will  have  terminated,  and 
that  Mr.  King  will  have  come  to  some  agreement  with  Lord 
Grenville,  or  will  be  able  to  state  precisely  the  ultimata  of  the 
British  cabinet  on  this  subject.  Should  it,  contrary  to  our 
expectation,  remain  open,  the  President  is  of  opinion  that 
informal  explanations  may  be  received  in  lieu  of  the  articles 
required,  provided  sufficient  assurances  acompany  them  that 
the  commissioners,  on  the  part  of  His  Britannic  Majesty  will, 
in  the  true  spirit  of  conciliation,  conform  to  those  explanations. 

The  idea  suggested  to  Lord  Grenville  by  Mr.  King,  of  send 
ing  over  confidential  characters  to  the  United  States,  with 
power  to  make  arrangements  for  facilitating  the  just  and  im 
partial  execution  of  the  treaty,  and  with  an  eventual  appoint 
ment  as  commissioners,  is  a  valuable  one.  If  no  positive  agree 
ment  can  be  made  which  will  enable  us  to  enter  again  on  the 
execution  of  the  sixth  article  without  submitting  to  injurious 
and  disgraceful  imposition,  this  idea  may  perhaps  be  so  im- 

*5  This  letter  is  printed  in  the  "  American  State  Papers,"  Vol.  II,  Class 
I,  Foreign  Relations,  pp.  386-387. 


78  THE  POLITICAL  AND  ECONOMIC 

proved  as  to  become  the  foundation  of  a  reasonable  accommo 
dation.  It  is  certainly  recommended  by  the  probabilities  you 
have  suggested. 

If  the  system  of  informal  explanation  should  be  adopted,  and 
the  new  Board  be  constituted,  in  the  mode  intimated  by  Lord 
Grenville,  there  will  undoubtedly  be  considerable  difficulty  in 
agreeing  on  rules  which  shall  guide  its  proceedings,  and  in 
obtaining  security  that  these  rules  will  not  be  departed  from. 
The  explanatory  articles  which  before  your  departure  were 
digested  by  -this  Government,  and  committed  to  you,  are  be 
lieved  to  be  a  liberal  as  well  as  just  construction,  and  would 
be,  therefore,  with  reluctance  receded  from :  indeed,  there  are 
among  them  some  from  which  we  never  ought  to  recede. 
Such,  for  example,  as  that,  to  charge  the  United  States,  the 
British  creditor  must  bring  his  case  completely  within  the 
treaty,  and  not  require  that  the  United  States  should  furnish 
evidence  to  discharge  themselves  from  every  claim  which  may 
be  at  present,  or,  on  the  signature  of  the  treaty  of  amity,  may 
have  been  unpaid.  Such  a  construction  appears  to  us  so  totally 
unreasonable,  that  we  should  never  have  deemed  it  necessary  to 
guard  against  it,  had  not  the  principle  been  already  asserted, 
and  it  is  of  course  a  construction  to  which  we  never  can  and 
never  ought  to  submit.  Other  principles  were  insisted  on 
which  seem  to  us  not  less  objectionable.  But  if  it  shall  be 
found  that  a  new  Board  is  to  be  resorted  to,  it  will  become 
necessary  to  revise  the  instructions  which  have  been  given,  and 
to  modify  them  so  far  as  a  proper  respect  for  justice  and  our 
own  character  will  permit. 

The  President  allows  you  to  return  to  the  United  States  as 
soon  as  the  negotiation  shall  have  taken  a  turn  which  in  your 
opinion  may  render  your  longer  continuance  in  England  un 
necessary,  or  so  soon  as  you  shall  have  communicated  fully 
to  Mr.  King  all  the  ideas  on  the  interesting  subject  of  your  mis 
sion,  which  your  intimate  acquaintance  with  it  has  enabled  you 
to  acquire. 

With  vry  much  respect  and  esteem,  I  am,  sir,  &c., 

J.  MARSHALL.46 

SAMUEL  SITGREAVES,  ESQ.,  LONDON. 

46  The  above  letter  is  printed  in  the  "  American  State  Papers,"  Vol.  II, 
pp.  388,  389.    Class  i,  "  Foreign  Relations." 


DOCTRINES  OF  JOHN  MARSHALL  79 

J.  MARSHALL,  SECRETARY  OF  STATE,  TO  RUFUS  KING, 

ESQUIRE 

DEPARTMENT  OF  STATE,  December  4,  1800. 
DEAR  SIR: 

Your  letters  to  No.  85,  inclusive,  have  been  received. 

In  my  No.  2  I  stated  to  you  the  opinion  of  the  President 
that  an  adjustment,  by  explanatory  articles  of  the  differences 
which  arose  on  executing  the  treaty  with  Great  Britain,  was 
preferred  to  the  stipulation  of  a  sum  in  gross,  to  be  paid  in 
lieu  of  the  compensation  to  creditors  demandable  from  the 
United  States. 

This  opinion  is  still  retained.  But  it  has  been  suggested 
that,  however  unreasonable  the  principles  asserted  by  the  Brit 
ish  commissioners  may  be,  it  will  be  difficult,  perhaps  impos 
sible,  to  induce  the  British  cabinet  formally  to  abandon  them. 
That  the  same  thing  may  probably  be  obtained  in  an  informal 
way,  which  would  be  withheld  if  required  in  the  shape  of  a 
solemn  public  stipulation. 

Under  the  impression  that  this  may  be  the  fact,  the  President 
directs  me  to  inform  you  that  an  informal  agreement,  provided 
it  be  perfectly  understood,  will  be  satisfactory  to  this  Gov 
ernment. 

If,  however,  on  any  such  agreement,  a  new  Board  should 
be  constituted  it  is  of  the  last  importance  that  the  persons 
appointed  to  act  as  commissioners  should  possess  dispositions 
inclined  to  conciliation,  and  characters  which  impress  you  with 
a  favorable  opinion  of  the  impartiality  to  be  expected  in  their 
decisions.  These  are  requisites,  the  materiality  of  which  we 
have  been  taught  by  experience,  and  on  them  must  greatly 
depend  our  assent  to  another  Board. 

If  you  have  brought  the  negotiations  to  a  conclusion  respect 
ing  the  sum  in  gross  mentioned  in  a  former  letter,  or  if  it  is  in 
such  a  train  that  no  change  can  without  embarrassment,  be 
made,  it  is  not  intended  to  derange  or  unsettle  the  business. 
But  if  no  agreement  has  been  concluded,  or  has  progressed  so 
far  as  to  pledge  the  United  States,  it  is  decidedly  the  judgment 
of  the  President  that  it  will  be  most  advisable  to  execute  the 
treaty  in  the  manner  originally  agreed  on,  provided  satis 
factory  informal  assurances  can  be  obtained,  that  we  shall  not 
be  subjected,  by  a  majority  of  the  Board,  to  an  enormous 
burthen  not  imposed  by  the  original  contract. 


80  THE  POLITICAL  AND  ECONOMIC 

If  persons  could  be  deputed  to  make  arrangements  here,  for 
facilitating  the  execution  of  the  treaty,  with  an  eventual  ap 
pointment  as  commissioners,  some  difficulties  might  perhaps 
be  surmounted  which,  at  present,  appear  very  considerable,  and 
the  business  might  be  greatly  expedited. 

As  we  cannot  know  the  precise  state  of  the  negotiation, 
it  is  impossible  to  do  more  than  to  communicate,  in  general 
terms,  the  course  which  the  President  most  wishes  it  to 
take.  Having  done  this,  to  your  judgment  it  must  be  submit 
ted. 

The  most  desirable  plan  of  accommodation  is  by  public  ex 
planatory  articles,  placing  the  treaty  on  its  true  principles,  in 
terms  not  easily  to  be  misunderstood. 

Second  to  this  is  the  system  of  informal  explanation,  by 
which  we  may  be  enabled,  without  great  injustice,  to  execute 
the  treaty  in  the  mode  originally  designed.  If,  in  neither  the 
one  way  nor  the  other,  a  new  Board  can  be  so  constituted  as  to 
comply  with  the  engagements  we  have  made  according  to  their 
real  import,  without  exposing  the  United  States  to  the  immense 
losses  threatened  by  that  which  has  been  dissolved,  then  the 
stipulation  for  a  sum  in  gross  will  be  deemed  more  eligible 
than  to  permit  things  to  remain  in  their  present  unsettled  sit 
uation. 

We  are  surprised  that,  at  the  date  of  your  No.  85,  no 
letter  on  this  subject  had  been  received  from  this  Depart 
ment. 

With  the  most  respectful  esteem,  &c., 

J.  MARSHALL.47 

RUFUS  KING,  ESQ. 

LETTER  48  FROM  JOHN  MARSHALL  TO  THE  HON. 
DUDLEY  CHASE 

WASHINGTON,  February  7,  1817. 
SIR: 

Your  letter,  enclosing  a  copy  of  the  bill  "  to  provide  for  re 
ports  of  the  decisions  of  the  Supreme  Court,"  in  which  you  do 

47  The  above  letter  is  printed  in  the  "  American  State  Papers/'  Vol.  II, 
p.  339,  Class  i. 

48  The  above  letter  is  printed  in  the  "  American  State  Papers,"  Class 
X,  Miscellaneous,  Vol.  II,  pp.  419-420,  Documents  Legislative  and  Execu 
tive,  published  by  Gales  and  Seaton,  Washington,  1834. 


DOCTRINES  OF  JOHN  MARSHALL  81 

me  the  honor  to  request,  for  the  committee,  "  my  views  relative 
to  the  object  and  utility  of  the  proposed  act,"  was  yesterday 
received,  and  communicated  to  the  judges. 

We  all  concur  in  the  opinion  that  the  object  of  the  bill  is  in 
a  high  degree  desirable. 

That  the  cases  determined  in  the  Supreme  Court  should  be 
reported  with  accuracy  and  promptness,  is  essential  to  correct 
ness  and  uniformity  of  decision  in  all  the  courts  of  the  United 
States.  It  is  also  to  be  recollected  that  from  the  same  tribunal 
the  public  receive  that  exposition  of  the  constitution,  laws, 
and  treaties  of  the  United  States  as  applicable  to  the  cases  of 
individuals  which  must  ultimately  prevail.  It  is  obviously  im 
portant  that  a  knowledge  of  this  exposition  should  be  attainable 
by  all. 

It  is  a  minor  consideration,  but  not  perhaps  to  be  entirely 
overlooked,  that,  even  in  cases  where  the  decisions  of  the  Su 
preme  Court  are  not  to  be  considered  as  authority  except  in  the 
courts  of  the  United  States,  some  advantage  may  be  derived 
from  their  being  known.  It  is  certainly  to  be  wished  that  inde 
pendent  tribunals  having  concurrent  jurisdiction  over  the  same 
subject  should  concur  in  the  principles  on  which  they  determine 
the  causes  coming  before  them.  This  concurrence  can  be  ob 
tained  only  by  communicating  to  each  the  judgments  of  the 
other,  and  by  that  mutual  respect  which  will  probably  be 
inspired  by  a  knowledge  of  the  grounds  on  which  their  judg 
ments  respectively  stand.  On  great  commercial  questions, 
especially,  it  is  desirable  that  the  judicial  opinions  of  all  parts 
of  the  Union  should  be  the  same. 

From  experience,  the  judges  think  there  is  much  reason  to 
apprehend  that  the  publication  of  the  decisions  of  the  Supreme 
Court  will  remain  on  a  very  precarious  footing  if  the  reporter 
is  to  depend  solely  on  the  sales  of  his  work  for  a  reimbursement 
of  the  expenses  which  must  be  incurred  in  preparing  it,  and  for 
his  own  compensation.  The  patronage  of  the  Government  is 
believed  to  be  necessary  to  the  secure  and  certain  attainment  of 
the  object. 

Law  reports  can  have  but  a  limited  circulation.  They  rarely 
gain  admission  into  the  libraries  of  other  than  professional 
gentlemen.  The  circulation  of  the  decisions  of  the  Supreme 
Court  will  probably  be  still  more  limited  than  those  of  the  courts 
of  the  States,  because  they  are  useful  to  a  smaller  number  of  the 


82  THE  POLITICAL  AND  ECONOMIC 

profession.  Only  a  few  of  those  who  practice  in  the  courts  of 
the  United  States,  or  in  great  commercial  cities,  will  often 
require  them.  There  is,  therefore,  much  reason  to  believe  that 
no  reporter  will  continue  to  employ  his  time  and  talents  in  pre 
paring  those  decisions  for  the  press  after  he  shall  be  assured 
that  the  Government  will  not  countenance  his  undertaking. 

With  very  great  respect,  I  am,  sir,  your  obedient  servant, 

J.  MARSHALL. 

THE  HON.  DUDLEY  CHASE. 

LETTER «  TO  RICHARD  SODERSTROM,  ESQ. 

WASHINGTON,  November  26,  1800. 
SIR: 

I  have  received  your  letters  of  the  24th  and  25th  instant, 
accompanying  one  from  the  Governor  General  of  the  Danish 
West  India  islands,  bearing  date  of  the  6th  of  August  last. 

Be  assured,  sir,  that  the  Government  of  the  United  States 
respects,  as  it  ought  to  do,  the  friendship  and  flag  of  His  Danish 
Majesty,  and  will  not  intentionally  commit  an  act  which  may 
insult  the  one,  or  diminish  the  other.  If,  in  any  instance,  our 
cruisers  have  violated  a  really  neutral  flag,  they  have,  in  doing 
so,  departed  from  the  instructions  under  which  they  sail. 

It  is  not,  however,  to  be  disguised,  that  means  have  been 
devised  by  which  the  Danish  flag  has  been  used  in  the  West 
Indies  for  purposes  which  we  believe  His  Danish  Majesty 
would  not  countenance. 

I  have  communicated  the  letters  from  yourself  and  the  Gov 
ernor  General  of  the  Danish  West  India  islands,  to  the  Secre 
tary  of  the  Navy.  He  informs  me  that  Lieutenant  Maley  has 
been  dismissed  the  service  principally  on  account  of  the  im 
proper  manner  in  which  he  has  conducted  himself  toward 
neutrals. 

With  respect  to  the  particular  case  of  the  Mercator,  it  is  cer 
tainly  advisable  to  prosecute  an  appeal.  If  she  was  really  a 
neutral  bottom,  she  will  not,  it  is  presumed,  be  condemned. 
Without  deciding  absolutely  that  the  United  States  will  or  will 
not  consent,  when  the  case  shall  be  ultimately  decided,  to  pay 

49  The  above  letter  is  printed  in  the  "  American  State  Papers,"  Class  I, 
Vol.   III.   "  Foreign   Relations/'  p.  344. 


DOCTRINES  OF  JOHN  MARSHALL  83 

for  the  vessel  and  cargo  if  confiscated,  we  are  certainly  not 
sufficiently  informed  at  present  to  take  any  responsibility 
on  ourselves,  in  the  event  of  an  unfavorable  issue  of  that 
affair. 

J.  MARSHALL. 

LETTER™  FROM  JOHN  MARSHALL  TO  R.  KING 

RICHMOND,  April  25,  1706. 
DEAR  SIR: 

I  take  the  liberty  to  avail  myself  of  your  aid  for  forwarding 
to  Mr.  Hamilton  the  inclosed  letter.51 

The  ruling  party  of  Virginia  are  extremely  irritated  at  the 
vote  of  today  and  will  spare  no  exertion  to  obtain  a  majority 
in  other  counties.  Even  here  they  will  affect  to  have  the 
greater  number  of  freeholders  and  have  set  about  counter 
Resolutions  to  which  they  have  the  signatures  of  many  re 
spectable  persons,  but  of  still  a  greater  number  of  mere  boys ; 
and  altho'  some  caution  has  been  used  by  us  in  excluding 
those  who  might  not  be  considered  authorized  to  vote,  they 
will  not  fail  to  charge  us  with  having  collected  a  number  of 
names  belonging  to  foreigners  and  to  persons  having  no  prop 
erty  in  the  place.  The  charge  is  as  far  untrue  as  has  perhaps 
ever  happened  on  any  occasion  of  the  sort.  We  could,  by 
resorting  to  that  measure,  have  doubled  our  list  of  petitioners. 

I  have  endeavored  to  take  means  to  procure  similar  appli 
cations  from  various  parts  of  the  State.  Exitus  in  dubio 
est. 

With  very  much  respect  &  esteem,  &c. 

J.  MARSHALL. 

50  The  letter  to  Hamilton  here  mentioned  is  of  the  same  date  as  the 
above,  and  may  be  found  in  "  Works  of  Hamilton,"  Vol.  VI,  p.  108.     It 
relates  to  the  feeling  in  Virginia  relative  to  the  question  of  the  adoption 
of  Jay's  Treaty,  and  of  the  temper  of  the  House  of  Representatives,  es 
pecially  of  the  Virginia  members,  who  bitterly  opposed  its  ratification ;  it 
also   speaks  of  the  meeting  called  that   day   in   Richmond  by  those  who 
desired  the  ratification  of  the  treaty,  saying  that  a  resolution  had  been 
passed  by  a  decided  majority,  after  long  discussion,  "  that  the  welfare  and 
honor  of  the  nation  required  us  to  give  full  effect  to  the  treaty  negotiated 
with    Britain."     He    says    further :     "  I    think   it   would   be   very   difficult, 
perhaps  impossible,  to  engage  Mr.  H.    (probably  Mr.  Hamilton)    on  the 
right  side  of  this  question." 

51  "  Life  and  Correspondence  of  Rufus  King,"  Vol.  II,  pp.  45-46. 


84  THE  POLITICAL  AND  ECONOMIC 

LETTER"  FROM  J.  MARSHALL  TO  R.  KING 

RICHMOND,  May  24,  1796. 
DEAR  SIR  : 

Mr.  Henry  has  at  length  been  sounded  on  the  subject  you 
committed  to  my  charge.  Genl.  Lee  and  myself  have  each  con 
versed  with  him  on  it,  tho'  without  informing  him  particularly 
of  the  persons  who  authorized  the  communication.  He  is  un 
willing  to  embark  in  the  business.  His  unwillingness,  I  think, 
proceeds  from  an  apprehension  of  the  difficulties  to  be  encoun 
tered  by  those  who  shall  fill  high  Executive  offices. 

With  very  much  respect  and  esteem  &c. 

J.  MARSHALL. 
Endorsed  by  R.  King : 

Ansd.  i  June. — -regretting  &c  and  observing  that  it  wd.  be 
requisite  to  fix  on  another  person  without  delay. 

LETTER^  FROM  J.  MARSHALL  TO  RUFUS  KING 

RICHMOND,  May  5,  1802. 
DEAR  SIR  : 

This  unfortunate  accomplishment  of  the  long  &  difficult 
negotiation  with  which  you  were  charged,  is  peculiarly  gratify 
ing  to  those  who  unite  a  knowledge  of  the  embarassing  circum 
stances  attending  it,  to  a  real  wish  that  your  embassy  may  be 
as  honorable  to  yourself  as  it  has  been  useful  to  our  coun 
try. 

You  have  effected  what,  in  America,  has  been  heretofore 
deemed  impracticable.  You  have  made  a  treaty  with  one  of 
the  great  rival  Nations  of  Europe,  which  is  not  only  accept 
able  to  all,  but  the  merit  of  which  is  claimed  by  both  parties. 
The  advocates  of  the  present  administration  ascribe  to  it  great 
praise,  for  having,  with  so  much  dexterity  &  so  little  loss, 
extricated  our  country  from  a  debt  of  twenty-four  million  of 
dollars  in  which  a  former  administration  had  involved  it ;  while 
the  friends  of  the  ancient  state  of  things,  are  not  slow  in  add 
ing  the  present  happy  accomodation  to  the  long  list  of  their 
Merits. 

Yet  amidst  this  universal  approbation  so  correctly  given  to 
an  adjustment  of  differences  which  unquestionably  deserve  it, 

52  Letter  in  "  Life  and  Correspondence  of  R.  King,"  Vol.  II,  p,  48. 
.,  Vol.  IV,  pp.  116-118. 


DOCTRINES  OF  JOHN  MARSHALL  85 

the  mortifying  reflection  obtrudes  itself,  that  the  reputation  of 
the  most  wise  and  skillful  conduct  depends,  in  this  our  capri 
cious  world,  so  much  on  accident.  Had  Mr.  Adams  been  re- 
elected  President  of  the  United  States,  or  had  his  successor 
been  a  gentleman  whose  political  opinions  accorded  with  those 
held  by  the  preceding  executive,  a  very  different  reception,  I 
still  believe,  would  have  been  given  to  the  same  measure.  The 
payment  of  a  specific  sum  would  then  have  been  pronounced, 
by  those  who  now  take  merit  to  themselves  for  it,  a  humiliating 
national  degradation,  an  abandonment  of  national  interest,  a 
free  will  offering  of  millions  to  Britain  for  her  grace  &  favor, 
by  those  who  sought  to  engage  in  war  with  France,  rather  than 
repay,  in  part,  by  a  small  loan  to  that  republic,  the  immense 
debt  of  gratitude  we  owe  her. 

Such  is,  &  such  I  fear  will  ever  be  human  justice! 

When  I  recollect  the  advantage  actually  gained  by  Great 
Britain,  on  having  obtained  the  fifth  commissioner,  I  am  truly 
surprised  at  the  sum  agreed  on.  I  believe  it  is  as  much,  &  not 
more  than,  in  strict  justice,  ought  to  be  paid,  but,  after  the 
impressions  made  by  the  late  board  of  commissioners  I  really 
apprehended  strict  justice  to  be  unattainable;  &  I  think,  not 
only,  that  great  credit  is  due  to  the  American  Negotiator  for 
having  reduced  this  enormous  claim  to  a  reasonable  amount, 
but  that,  all  circumstances  considered,  some  sentiment  of 
respect  should  be  felt  for  the  moderation  &  equity  of  the 
English  Minister. 

The  national  tribunals,  I  hope  will  continue  to  manifest, 
in  the  exposition  of  the  treaty  of  peace,  "  that  share  of  pru 
dence,"  which  is  required  by  justice,  &  which  can  alone  pre 
serve  the  reputation  of  the  nation. 

Public  opinion  in  this  quarter  of  the  union  has  sustained  no 
essential  change.  That  disposition  to  coalesce  with  what  is, 
now,  the  majority  in  America  as  well  as  in  this  state,  which  was 
strongly  display'd  by  the  minority  twelve  months  past,  exists 
no  longer.  It  has  expired.  But  the  minority  is  only  recover 
ing  its  strength  &  firmness.  It  acquires  nothing. 

Our  political  tempests  will  long,  very  long,  exist  after  those 
who  are  now  toss'd  about  by  them  shall  be  at  rest. 

Your  obedt.  Servt. 

J.  MARSHALL. 


86  THE  POLITICAL  AND  ECONOMIC 

A  LETTER  OF  MARSHALL  TO  JEFFERSON, 
DECEMBER  12,  1783 

In  the  centennial  period  of  the  Lewis  and  Clark  expedition 
much  interest  was  shown  in  one  of  the  manuscripts  in  the 
Draper  Manuscript  Collection  in  the  Wisconsin  Historical 
Library, —  a  note  from  Thomas  Jefferson,  dated  Annapolis, 
December  4,  1783,  to  General  George  Rogers  Clark,  suggest 
ing  to  the  latter  an  exploration  toward  the  Pacific  Ocean,  sim 
ilar  in  character  to  that  which  Jefferson  twenty  years  later 
succeeded  in  inducing  Meriwether  Lewis  and  William  Clark 
(younger  brother  of  George)  to  undertake.  This  letter  is 
printed  in  the  "  American  Historical  Review,"  Vol.  Ill,  p.  673, 
and  has  been  printed  in  several  other  magazines.  Some  time 
ago  Prof.  R.  E.  N.  Dodge,  of  the  University  of  Wisconsin, 
presented  the  Wisconsin  Historical  Library  with  an  autograph 
letter  of  Chief  Justice  John  Marshall,  that  throws  additional 
light  on  this  famous  letter  of  Jefferson  to  George  Rogers 
Clark.  This  letter,  one  of  the  few  that  were  written  to  Jeffer 
son  by  Marshall,  was  written  at  Williamsburg,  Va.,  and  was 
addressed  to  Thomas  Jefferson.  In  it  Marshall,  wrho  was  at 
that  time  a  member  of  the  state  executive  council,  acknowl 
edges  the  receipt  of  a  letter  written  by  Jefferson  on  the  fifth 
instant,  inclosing  "  letters  to  General  Clark  and  Mr.  Banks  " 
which  "  I  yesterday  delivered."  General  Clark  was  at  that 
time  in  Williamsburg,  trying  to  push  his  claims  for  reimburse 
ment  for  money  spent  in  his  celebrated  campaign  against  Vin- 
cennes.  This  letter  of  Marshall  to  Jefferson  is  noteworthy 
because  of  its  connection  with  the  latter's  early  project  of  an 
exploration  through  the  Spanish  Domain  beyond  the  Missis 
sippi,  and  for  its  characteristic  allusions  to  Patrick  Henry,  Col. 
R.  H.  Lee,  Colonel  Nicholas,  and  others  famous  in  that  day. 

The  letter  is  as  follows :  — 

WILLIAMSBURG,  VA.,  Dec.  i2th,  1783. 
DEAR  SIR: 

The  letters  to  Genl  Clark  and  Mr.  Banks  enclosed  in  yours 
of  the  5th.  inst.  I  yesterday  deliver'd.  Should  a  letter  to  Majr. 
Crittenden  arrive  by  the  next  post  I  can  give  it  a  certain  and 
immediate  conveyance.  I  gave  you  in  my  last  some  account 
of  the  proceedings  of  the  Assembly.  The  Commutable  bill  has 


DOCTRINES  OF  JOHN  MARSHALL  87 

at  length  pass'd  and  with  it  a  suspension  of  the  collections  of 
taxes  till  the  first  of  January  next.  I  told  you  the  principal 
speakers  for  and  against  the  measure.  Col.  R.  H.  Lee  has  not 
attended  this  Session.  This  is  not  all.  His  services  in  the  As 
sembly  are  lost  forever.  'Tis  conjectur'd  that  Col.  Harry  Lee 
of  the  Legionary  corps,  will  take  his  place.  You  know  the 
character  of  that  Gentleman  better  than  I  do  and  can  best  de 
termine  whether  the  public  will  be  injur'd  by  the  change.  The 
idea  of  rendering  Members  of  Congress  eligible  to  the  Genl. 
Assembly  has  not  been  taken  up.  Indeed  the  attention  of  the 
house  since  the  passage  of  the  Commutable  bill  has  been  so 
fix'd  on  the  Citizen  bill  that  they  have  scarcely  thought  on  any 
other  subject.  Since  the  rejection  of  the  bill  introduc'd  by 
Taylor,  Col.  Nicholas  (politician  not  fam'd  for  hitting  a 
medium)  introduced  one  admitting  into  this  Country  every 
species  of  Men  except  Natives  who  had  borne  arms  against  the 
state.  When  the  house  went  into  Committee  on  this  bill  Mr. 
Jones  introduc'd  by  way  of  amendment,  one  totally  new  and 
totally  opposite  to  that  which  was  the  subject  of  deliberation. 
He  spoke  with  his  usual  sound  sense  and  solid  reason.  Mr. 
Henry  opposed  him.  The  Speaker  replied  with  some  degree 
of  acrimony  and  Henry  retorted  with  a  good  deal  of  tartness 
but  with  much  temper;  'tis  his  peculiar  excellence  when  he 
altercates  to  appear  to  be  drawn  unwillingly  into  the  contest 
and  to  throw  in  the  eyes  of  others  the  whole  blame  on  his  ad 
versary.  His  influence  is  immense.  The  house  rose  for  the 
day  without  coming  to  any  determination  and  the  bill  is  yet 
in  suspense.  The  principal  point  on  which  they  split  is  the  ex 
clusion  of  the  Statute  Staple  Men.  I  really  am  uncertain  what 
will  be  the  determination  on  this  subject. 

The  Officers  will  soon  begin  to  survey  their  lands  on  the 
Cumberland.  Has  Crittenden  your  Millitary  warrant?  The 
report  from  Congress  with  respect  to  the  cession  has  not  yet 
reached  us ;  of  course  the  assembly  can  have  determined  noth 
ing  about  it.  My  Father  set  out  for  the  western  Country  about 
the  5th,  of  Novr.  I  have  not  heard  a  syllable  from  Crittenden 
since  his  departure. 

As  ever  I  am  with  the  greatest  esteem  yours 

J.  MARSHALL. 

Banks  has  applied  to  me  for  a  considerable  sum,  on  your 


88  THE  POLITICAL  AND  ECONOMIC 

account  but  I  presume  Your  letter  to  him  was  on  that  subject. 
I  parry  every  applicant  as  well  as  possible. 

Yours  J.  M. 

LETTER  OF  JOHN  MARSHALL  TO  JAMES  WILKINSON 

This  letter  is  printed  in  the  "  American  Historical  Review," 
Vol.  XII,  pp.  347-348.  The  publishers  acknowledge  their  in 
debtedness  to  Col.  Reuben  T.  Durrett,  LL.D.,  of  Louisville, 
Kentucky,  for  the  letter.  At  that  time  Colonel  Durrett  writes  : 

:<  This  letter  was  written  to  Gen.  James  Wilkinson,  at  that 
time  a  resident  of  Kentucky,  although  his  name  does  not  appear 
in  the  address.  His  name  and  address  were  on  the  envelope, 
which  has  since  been  destroyed." 

This  letter,  as  Colonel  Durrett  intimates,  shows  a  kindly 
feeling  between  writer  and  recipient  that  Humphrey  Marshall, 
the  historian  (John  Marshall's  cousin),  would  hardly  have 
been  willing  to  admit.  He  also  calls  attention  to  the  efforts 
that  Col.  Thomas  Marshall  (father  of  John)  made  in  1791 
toward  securing  Wilkinson's  reappointment  to  the  army  of  the 
United  States.  Colonel  Marshall,  however,  it  should  be  said, 
gives  as  a  reason  for  this  that  Wilkinson  was  a  dangerous  man 
while  not  engaged,  but  that  the  danger  might  be  removed  by 
giving  him  employment.  Colonel  Durrett  suggests  that  pos 
sibly  John  Marshall  may  have  been  moved  by  similar  considera 
tions  in  trying  to  obtain  for  him  a  passport  out  of  the  United 
States.  The  first  paragraph  in  regard  to  the  Governor,  Ed 
mund  Randolph,  is  not  exactly  clear. 

RICHMOND,  Jan.  5th,  1787. 
DEAR  SIR: 

It  is  with  a  great  deal  of  mortification  I  tell  you  that  I  have 
failed  in  obtaining  the  passport  I  applied  for.  On  my  mention 
ing  the  subject  to  the  Governor  he  said  he  was  acquainted  with 
you  and  would  with  great  pleasure  do  anything  which  was 
proper  to  serve  you.  He  took  time  to  consider  the  subject  and 
after  several  applications,  told  me  today  that  to  grant  the  pass 
port  as  an  official  act  was  entirely  improper  because  it  could 
only  extend  to  the  limits  of  Virginia  to  which  you  had  a  right 
to  go  without  his  permit  and  that  he  could  not  write  a  private 
letter  of  recommendation  to  the  Governor  without  having  some 
acquaintance  with  him.  On  these  reasons  sir,  my  application 


DOCTRINES  OF  JOHN  MARSHALL  89 

in  your  favor  was  rejected.  I  am  much  chagrined  at  my  dis 
appointment. 

I  am  much  indebted  to  you  for  the  clear  and  succinct  ac 
count  you  have  given  me  of  the  two  expeditions  against  the 
Indians.  I  fear  with  you  that  so  long  as  you  remain  con 
nected  with  Virginia  it  will  be  absolutely  impossible  to  act  on 
any  great  occasion  with  reputation  or  success.  Just  informa 
tion  from  such  a  distance  will  never  be  obtained  by  govern 
ment  without  a  solicitude  about  intelligence  which  seldom 
exists  in  a  proper  degree  on  the  eve  of  a  separation.  You  are 
considered  as  being  certainly  about  to  part  with  us,  and  there 
fore  less  attention  will  be  given  to  any  regulations  respecting 
your  country  than  if  the  disunion  was  not  expected. 

All  is  gloom  in  the  eastern  states.  Massachusetts  is  rent 
into  two  equal  factions  and  an  appeal  I  fear  has  by  this  time 
been  made  to  the  God  of  battles.  Three  of  the  leaders  of 
the  opponents  to  Government  have  been  taken  and  imprisoned 
in  Boston.  The  whole  force  of  the  party  is  collected  for  their 
relief.  The  last  intelligence  gives  us  reason  to  fear  that  be 
fore  this  time  the  attempt  to  relieve  them  has  been  made  with 
the  whole  power  of  one  party  and  opposed  by  the  whole  power 
of  the  other.  But  of  this  I  suppose  you  receive  better  informa 
tion  than  I  can  give  you.  We  have  contradictory  accounts  of 
the  motives  and  views  of  the  insurgents.  We  are  sometimes 
informed  that  they  are  a  British  faction  supported  secretly 
from  Canada,  whose  immediate  object  is  to  overthrow  the 
present  and  restore  the  former  government,  at  other  times  we 
are  told  that  it  is  a  mere  contest  for  power  between  Bowdoin 
and  Hancock  and  that  the  Hancock  faction  are  aiming  at  the 
destruction  of  all  public  securities  and  the  subversion  of  all 
public  faith.  Whatever  may  be  the  cause  of  these  dissentions 
or  however  they  may  terminate,  in  their  present  operation  they 
deeply  affect  the  happiness  and  reputation  of  the  United  States. 
They  will,  however,  I  presume  tend  to  people  the  western 
world  if  you  can  govrn  yourselves  so  wisely  as  to  present  a  safe 
retreat  to  the  weaker  party.  These  violent,  I  fear  bloody  dis 
sensions  in  a  state  I  had  thought  inferior  in  wisdom  and  virtue 
to  no  one  in  the  union,  added  to  the  strong  tendency  which  the 
politics  of  many  eminent  characters  among  ourselves  have  to 
promote  private  and  public  dishonesty  cast  a  deep  shade  over 
that  bright  prospect  which  the  revolution  in  America  and  the 


90  THE  POLITICAL  AND  ECONOMIC 

establishment  of  our  free  governments  had  opened  to  the 
votaries  of  liberty  throughout  the  globe.  I  fear,  and  there 
is  no  opinion  no  more  degrading  to  the  dignity  of  man,  that 
these  have  truth  on  their  side  who  say  that  man  is  incapable 
of  governing  himself.  I  fear  we  may  live  to  see  another 
revolution. 

I  am  dear  sir,  with  high  esteem  and  respect, 

Your  obed't  serv't. 

J.  MARSHALL. 

The  correspondence  of  Alexander  Hamilton  proves  that  he 
decided  the  question  of  the  Presidency.  Hamilton  wrote  a 
great  many  letters  about  the  last  of  1800  and  the  first  part  of 
1 80 1.  He  made  his  decision  under  circumstances  and  from 
motives  that  show  that  he  was  governed  solely  by  the  highest 
and  largest  considerations  of  the  public  welfare.  It  was  at 
that  time  clearly  ascertained  that  either  Burr  or  Jefferson  would 
be  President.  Hamilton  seemed  to  see  that  it  would  never  do 
to  have  Burr  President ;  he  said,  "  As  to  Burr,  there  is  nothing 
in  his  favor."  He  also  said,  "  Jefferson  is  not  so  dangerous  a 
man  by  far." 

Hamilton  wrote  to  Morris  : 

"  I  trust  the  Federalists  will  not  finally  be  so  mad  as  to  vote 
for  Burr.  I  speak  with  an  intimate  and  accurate  knowledge  of 
character.  His  elevation  can  only  promote  the  purposes  of 
the  desperate  and  profligate.  If  there  be  a  man  in  the  world 
I  ought  to  hate,  it  is  Jefferson.  With  Burr  I  have  always  been 
personally  well.  But  the  public  good  must  be  paramount  to 
every  private  consideration.  My  opinion  may  be  freely  used 
with  such  reserves  as  you  shall  think  discreet." 

Hamilton  also  addressed  a  letter  to  Marshall,  of  which  no 
copy  is  preserved,  but  there  is  no  doubt  but  that  it  was  very 
similar  to  the  one  quoted  above.  Marshall  replied  to  this  letter 
at  once  as  follows  : 

January  ist,  1801. 
DEAR  SIR  :  — 

I  received  this  morning  your  letter  of  the  26th  of  December. 
It  is,  I  believe,  certain  that  Jefferson  and  Burr  will  come  to  the 
House  of  Representatives  with  equal  votes.  The  returns  have 
been  all  received,  and  this  is  the  general  opinion. 

Being  no  longer  in  the  House  of  Representatives,  and  conse- 


DOCTRINES  OF  JOHN  MARSHALL  91 

quently  compelled  by  no  duty  to  decide  between  them,  my  own 
mind  had  scarcely  determined  to  which  of  these  gentlemen  the 
preference  was  due.  To  Mr.  Jefferson,  whose  political  char 
acter  is  better  known  than  that  of  Mr.  Burr,  I  have  felt  almost 
insuperable  objections.  His  foreign  prejudices  seem  to  me 
totally  to  unfit  him  for  the  chief  magistracy  of  a  nation  which 
cannot  indulge  those  prejudices  without  sustaining  deep  and 
permanent  injury.  In  addition  to  this  solid  and  immovable 
objection,  Mr.  Jefferson  appears  to  me  to  be  a  man  who  will 
embody  himself  with  the  House  of  Representatives.  By  weak 
ening  the  office  of  President  he  will  increase  his  personal 
power.  He  will  diminish  his  responsibility,  sap  the  funda 
mental  principles  of  the  government,  and  become  the  leader  of 
that  party  which  is  about  to  constitute  the  majority  of  the  leg 
islature.  The  morals  of  the  author  of  the  letter  to  Mazzei  can 
not  be  pure. 

With  these  impressions  concerning  Mr.  Jefferson,  I  was  in 
some  degree  disposed  to  view  with  less  apprehension  any  other 
characters,  and  to  consider  the  alternative  now  offered  as  a 
circumstance  not  to  be  entirely  neglected. 

Your  representation  of  Mr.  Burr,  with  whom  I  am  totally 
unacquainted,  shows  that  from  him  still  greater  danger  than 
even  from  Mr.  Jefferson  may  be  apprehended.  Such  a  man 
as  you  describe  is  more  to  be  feared,  and  may  do  more  imme 
diate,  if  not  greater,  mischief.  Believing  that  you  know  him 
well,  and  are  impartial,  my  preference  would  certainly  not  be 
for  him;  but  I  can  take  no  part  in  this  business.  I  cannot 
bring  myself  to  aid  Mr.  Jefferson.  Perhaps  respect  for  my 
self  should,  in  my  present  situation,  deter  me  from  using  any 
influence  (if,  indeed,  I  possessed  any)  in  support  of  either 
gentleman.  Although  no  consideration  could  induce  me  to  be 
the  Secretary  of  State  while  there  was  a  President  whose  po 
litical  system  I  believed  to  be  at  variance  with  my  own,  yet  this 
cannot  be  so  well  known  to  others,  and  it  might  be  suspected 
that  a  desire  to  be  well  with  the  successful  candidate  had,  in 
some  degree,  governed  my  conduct. 

With  you  I  am  in  favor  of  ratifying  our  treaty  with  France, 
though  I  am  far,  very  far,  from  approving  it.  There  is,  how 
ever,  one  principle  which  I  think  it  right  to  explain. 

Our  envoys  were  undoubtedly  of  opinion  that  our  prior 
treaty  with  Britain  would  retain  its  stipulated  advantages,  and 


92  THE  POLITICAL  AND  ECONOMIC 

I  think  that  opinion  correct.  Were  our  convention  with  any 
other  nation  than  France,  I  should  feel  no  solicitude  on  this 
subject.  But  France,  the  most  encroaching  nation  on  earth, 
will  claim  a  literal  interpretation,  and  our  people  will  decide  in 
her  favor.  Those  who  could  contend  that  a  promise  not  to 
permit  privateers  of  the  enemy  of  France,  to  be  fitted  out  in  our 
ports,  amounted  to  a  grant  of  that  privilege  to  France,  would 
not  hesitate  to  contend  that  a  stipulation  giving  to  France,  on 
the  subject  of  privateers  and  prizes,  the  privileges  of  the  most 
favored  nation,  placed  her  on  equal  ground  with  any  other 
nation  whatever.  In  consequence  of  this  temper  in  our 
country,  I  think  the  ratification  of  the  treaty  ought  to  be  ac 
companied  with  a  declaration  of  the  sense  in  which  it  is  agreed 
to.  This,  however,  is  only  my  own  opinion. 
With  very  much  respect  and  esteem, 

I  am,  dear  Sir,  yours  obediently, 

J.  MARSHALL. 


MARSHALL  TO  HAMILTON 

WASHINGTON,  August  23d,  1800. 
DEAR  SIR  : 

I  received  today  your  letter  of  the  igth  inst,  accompanying 
a  memorial  from  the  Governor-General  of  the  Danish  West 
India  Islands,  respecting  the  conduct  of  some  of  our  ships  of 
war. 

This  paper  shall  be  immediately  communicated  to  the  Secre 
tary  of  the  Navy.  Our  dispatches  from  Paris  come  no  later 
than  the  I7th  of  May.  There  is  nothing  in  them  on  which  a 
positive  opinion  respecting  the  result  of  that  negotiation  can 
be  formed. 

Connecting   the   then   state  of  things   with   the   European 
events  which  have  since  happened,  and  with  intelligence  from 
America  which  has  since  reached  them,  I  shall  not  be  surprised 
if  the  paragraph  from  St.  Sebastian  should  be  true. 
With  very  much  respect  and  esteem,  &c. 

J.    MARSHALL.54 

54  The   above    letter    is    printed    in    "  Hamilton's    Works,"   by   John    C. 
Hamilton,  Vol.  VI,  p.  460. 


DOCTRINES  OF  JOHN  MARSHALL  93 

MARSHALL  TO  HAMILTON 

RICHMOND,  April  25th,  1796. 
DEAR  SIR: 

Yours  of  the  I4th  only  reached  me  by  the  mail  this  evening. 
I  had  been  informed  of  the  temper  of  the  House  of  Representa 
tives,  and  we  had  promptly  taken  such  measures  as  appeared  to 
us  fitted  to  the  occasion.  We  could  not  venture  an  expression 
of  the  public  mind  under  the  violent  prejudices  with  which  it 
has  been  impressed,  so  long  as  a  hope  remained,  that  the  House 
of  Representatives  might  ultimately  consult  the  interest  or 
honor  of  the  nation.  But  now,  when  all  hope  of  this  has  van 
ished,  it  was  deemed  advisable  to  make  the  experiment,  how 
ever  hazardous  it  might  be.  A  meeting  was  called,  which  was 
more  numerous  than  I  have  ever  seen  at  this  place ;  and  after  a 
very  ardent  and  zealous  discussion  which  consumed  the  day,  a 
decided  majority  declared  in  favor  of  a  resolution  that  the  wel 
fare  and  honor  of  the  nation  required  us  to  give  full  effect  to 
the  treaty  negotiated  with  Britain.  This  resolution,  with  a 
petition  drawn  by  an  original  opponent  of  the  treaty,  will  be 
forwarded  by  the  next  post  to  Congress.  The  subject  will 
probably  be  taken  up  in  every  county  in  the  State,  or  at  any 
rate  in  very  many  of  them.  It  is  probable  that  a  majority  of 
the  counties  will  avow  sentiments  opposed  to  ours,  but  the 
division  of  the  State  will  appear  to  be  much  more  consider 
able  than  has  been  stated.  In  some  of  the  districts  there  will 
certainly  be  a  majority  who  will  concur  with  us,  and  that  per 
haps  may  have  some  effect.  As  man  is  a  gregarious  animal, 
we  shall  certainly  derive  much  aid  from  declarations  in  sup 
port  of  the  constitution  and  of  appropriations,  if  such  can  be 
obtained  from  our  sister  States.  The  ground  we  take  here 
is  very  much  that  of  Mr.  Hillhouse.  We  admit  the  discretion 
ary  constitutional  power  of  the  representatives  on  the  subject 
of  appropriations,  but  contend  that  the  treaty  is  as  completely 
a  valid  and  obligatory  contract  when  negotiated  by  the  Pres 
ident  and  ratified  by  him,  with  the  assent  and  advice  of  the 
Senate,  as  if  sanctioned  by  the  House  of  Representatives  also 
under  a  constitution  requiring  such  sanction.  I  think  it  would 
be  very  difficult,  perhaps  impossible,  to  engage  Mr.  H.  on  the 
right  side  of  this  question.  If  you  have  any  communications 


94  THE  POLITICAL  AND  ECONOMIC 

which  might  promote  a  concurrence  of  action,  we  shall  be 
proud  to  receive  them. 

With  much  respect  and  esteem, 

From,  dear  Sir,  your  obedient  servant, 

JOHN    MARSHALL.55 

At  a  meeting  of  the  Massachusetts  Historical  Society  held 
in  November,  1900,  Mr.  Charles  C.  Smith  communicated  some 
unpublished  letters  of  Chief  Justice  Marshall,  and  said : 

"  In  examining  the  Pickering  Papers,  to  revive  my  recol 
lection  of  the  correspondence  between  Chief  Justice  Marshall 
and  Colonel  Pickering,  my  eye  fell  on  two  letters  from  the 
former  which  it  seems  worth  while  to  print  in  full  in  the 
proceedings.  The  first  is  an  answer  to  two  letters  from 
Colonel  Pickering,  respectively  dated  January  17  and  January 
24,  1826,  the  rougn  draughts  of  which  are  in  the  Pickering 
Papers.  In  them  Pickering,  among  other  things,  expressed  his 
gloomy  forebodings  at  the  extension  of  slavery,  his  estimate  of 
the  talents  and  party  services  of  William  B.  Giles,  and  his 
detestation  and  contempt  for  the  acts  and  sentiments  of  Gov 
ernor  Troup,  of  Georgia." 

Judge  Marshall's  reply  is  as  follows : 

Col.  Timothy  Pickering, 
Salem,  Massachusetts. 

Mr.  Story. 
WASHINGTON,  March  2oth,  '26. 

DEAR  SIR: —  I  had  the  pleasure  of  receiving  your  letters  of 
the  1 7th  &  23d  of  Jany  by  Mr.  Story  &  congratulate  you  very 
sincerely  on  the  vigorous  health  which  your  letters  manifest. 
It  is  consoling  to  think  that  we  may  look  forward  to  very  ad 
vanced  life  with  the  hope  of  preserving  with  health  &  temper 
ance  so  large  a  share  of  mental  &  bodily  strength  as  to  make 
life  still  desirable  &  agreeable. 

I  concur  with  you  in  thinking  that  nothing  portends  more 
calamity  &  mischief  to  the  Southern  States  than  their  slave 
population.  Yet  they  seem  to  cherish  the  evil  and  to  view  with 
immovable  prejudice  &  dislike  everything  which  may  tend  to 
diminish  it.  I  do  not  wonder  that  they  should  resist  any  at 
tempt,  should  one  be  made,  to  interfere  with  the  rights  of 

55  The  above  letter  is  printed  in  "  Hamilton's  Works,"  Vol.  VI,  pp.  108- 
109. 


DOCTRINES  OF  JOHN  MARSHALL  95 

property,  but  they  have  a  feverish  jealousy  of  measures  which 
may  do  good  without  the  hazard  of  harm  that  is,  I  think,  very 
unwise. 

All  America,  I  believe,  will  join  you  in  opinion  respecting 
the  late  intemperate  course  of  the  Governor  of  Georgia.  I 
very  much  fear  that  the  embarassment  into  which  the  purchase 
from  the  Creeks  has  thrown  us  will  be  prolonged  by  a  rejection 
of  the  last  treaty. 

You  are  undoubtedly  right  in  supposing  Mr.  Giles  to  be  a  dis- 
conted  man.  He  was  unquestionably  a  very  poweful  de 
bater  on  the  floor  of  either  branch  of  the  legislature,  &  has 
seen  men  placed  before  him  by  the  party  which  he  has  served 
very  effectually  to  whom  he  gave  precedence  very  reluctantly. 
He  fell  out  with  Virginia  too,  but  seems  now  determined  to 
write  himself  again  into  favour.  His  health  has  been  for  some 
years  very  bad,  but  he  is  now  getting  rather  better  and  would 
be  very  glad  to  come  forwards  once  more  in  political  life.  He 
is  undoubtedly  desirous  of  recommencing  his  career  as  a  public 
man.  He  may  probably  be  successful  as  he  undoubtedly 
possesses  &  is  believed  to  possess,  considerable  talents  and 
avows  opinions  which  are  very  popular  in  Virginia. 

Your  recollection  of  events  which  took  place  for  the  last 
twenty  years  is  very  accurate,  and  you  replace  in  my  memory 
many  things  which  I  had  almost  forgotten.  There  are  not 
many  who  retain  them  as  fresh  as  you  do,  and  I  am  persuaded 
that  they  will  soon  be  entirely  lost.  Those,  who  follow  us  will 
know  very  little  of  the  real  transactions  of  our  day,  and  will 
have  very  untrue  impressions  respecting  men  &  things.  Such 
is  the  lot  of  humanity. 

Farewell.  With  warm  wishes  for  your  health  &  happiness, 
and  with  great  and  respectful  esteem, 

I  am,  dear  Sir,  your  obedt. 

J.  MARSHALL. 

The  second  letter  is  in  answer  to  a  very  long  and  elaborate 
letter  from  Colonel  Pickering,  describing  General  Washing 
ton's  military  character  and  capacity  as  being  "  strikingly  de 
ficient  in  quick  discernment  and  instant  decision."  This  letter, 
which  fills  nearly  thirty  quarto  pages,  is  not  mentioned  in  Mr. 
Upham's  "  Life  of  Pickering  " ;  but  it  seems  to  have  been  care 
fully  copied  by  Pickering  for  publication,  and  prefixed  to  his 


96  THE  POLITICAL  AND  ECONOMIC 

copy  are  a  title  page  and  an  "  Advertisement/'  at  the  close  of 
which  he  writes,  referring  to  Judge  Marshall :  "  I  thought 
that  candour  towards  so  excellent  a  man  and  my  friend,  as 
well  as  a  regard  to  my  own  reputation,  required  me  to  state 
explicitly  to  Judge  Marshall  some  principal  facts  on  which  my 
opinion  of  Washington's  military  character  was  formed ;  and 
also  to  glance  at  some  incidents  tending  to  show  that  he  was 
not  endowed  with  the  talents  of  a  statesman,  as  I  knew  that 
he  did  not  possess  those  of  a  general." 

Judge  Marshall's  letter  acknowledging  the  receipt  of  this 
letter  is  a  fine  model  of  courteous  and  cautious  restatement  of 
opinion  for  anyone  who  is  determined  not  to  be  drawn  into 
a  useless  controversy.  Of  this  Pickering  was  fully  aware, 
and  in  a  letter  to  Marshall  written  nearly  a  year  later 
he  says :  (  The  amicable  tenor  of  your  letter  of  the  I4th 
(i5th)  of  March  was  highly  gratifying  to  me,"  and  again, 
"  I  was  happy  that  you  took  in  good  part  my  frank  statement 
of  facts  representing  General  Washington." 

Judge  Marshall  writes : 

Col.  Timothy  Pickering,  Mr.  Justice  Story. 

Salem, 

Massachusetts. 

WASHINGTON,  March  i5th,  1827. 
MY  DEAR  SIR  : 

I  was  much  obliged  by  your  favor  of  the  I4th  of  Feby, 
through  our  friend  Mr.  Mercer.  I  am  always  gratified  at  be 
ing  recollected  by  my  old  friends,  for  I  find  myself  incapable 
of  making  new  ones. 

I  have  seen  in  the  papers  the  discussions  between  my  brother 
Johnson  and  yourself  respecting  Count  Pulaski  and  the  bat 
tle  of  Germantown.  It  is  not  a  little  gratifying  to  us  who  are 
treading  close  upon  your  heels  to  observe  how  firmly  you 
step  &  how  perfectly  you  retain  your  recollection.  You  are  a 
little  before  me,  and  I  find  myself  almost  alone  in  the  world. 
With  the  exception  of  Judge  Peters,  yourself,  and  Mr.  Wol- 
cot,  I  can  scarcely  find  any  person  who  was  conspicuous  on 
the  great  theatre  of  our  country  when  I  first  began  to  mix  in 
public  affairs.  Things  are  very  much  changed  as  well  as  men. 

Is  it  probable  that  you  will  ever  travel  as  far  south  as  Wash 
ington?  Few  things  would  give  me  so  much  pleasure  as  to 


DOCTRINES  OF  JOHN  MARSHALL  97 

see  you,  but  that  is  a  pleasure  which  I  scarcely  dare  promise 
myself.  It  is  probable  that  the  line  which  circumscribes  your 
movements  to  the  south  will  never  intersect  that  which  bounds 
me  on  the  north. 

You  give  a  great  many  interesting  anecdotes  of  General 
Washington  which  serve  to  develope  his  character.  Your 
opportunities  of  personal  observation  enable  you  to  take  a  near 
view  of  the  man.  I  have  seen  him  only  at  a  distance.  I  have 
looked  at  him  through  those  actions  which  were  the  result  of 
mature  deliberation  and  consultation  with  those  to  whom  he 
gave  his  confidence.  The  conclusion  to  which  this  view  of 
him  has  conducted  me  is  extremely  favourable  to  his  judg 
ment,  his  wisdom,  and  his  virtue.  If  he  did  not  possess  that 
rapidity  of  decision  which  distinguishes  many  men  of  genius, 
there  seems  to  have  been  a  solidity  in  his  mind  which  fitted  him 
in  a  peculiar  manner  for  occupying  the  high  place  he  filled  in 
the  United  States  in  the  critical  times  in  which  he  filled  it. 
No  feature  in  his  character  was  more  conspicuous  than  his 
firmness.  Though  prizing  popular  favour  as  highly  as  it 
ought  to  be  prized,  he  never  yielded  principle  to  obtain  it,  or 
sacrificed  judgment  on  its  altar.  This  firmness  of  character 
added  to  his  acknowledged  virtue  enabled  him  to  stem  a  tor 
rent  which  would  have  overwhelmed  almost  any  other  man, 
and  did,  I  believe,  save  his  country. 

Such  is  my  impression  of  Washington,  an  impression  cer 
tainly  not  formed  on  a  near  view  of  him,  but  on  a  very  at 
tentive  consideration  of  his  character,  his  conduct,  and  his 
papers.  You  could  take  a  closer  view  of  him,  especially  as  a 
military  man,  than  was  in  my  power,  and  have  consequently 
better  means  of  judging  correctly  than  I  possess. 

With  the  best  wishes  for  your  health  and  happiness  and 
with  sincere  and  respectful  esteem, 

I  am,  dear  Sir,  your  obedt 

J.  MARSHALL. 

OPINIONS  OF  THE  LATE  CHIEF  JUSTICE  OF  THE  UNITED 
STATES,   JOHN    MARSHALL,    CONCERNING    FREE    MA 
SONRY 

A  gentleman  in  Norfolk  County,  Mass.,  supplied  the  follow 
ing  letter  from  the  late  Chief  Justice  of  the  United  States  to 
the  Hon.  Edward  Everett  on  the  subject  of  Freemasonry: 


98  THE  POLITICAL  AND  ECONOMIC 

RICHMOND,  July  22d,  1833. 
MY  DEAR  SIR  : 

I  have  received  your  favor  of  the  i6th,  enclosing  a  printed 
copy  of  your  letter  respecting  Masonry  to  Mr.  Atwell,  ac 
companied  by  printed  copies  of  letters  from  Gen.  Washing 
ton  and  Mr.  Madison  on  the  same  subject. 

Soon  after  entering  the  army  I  was  made  a  Mason.  In  ad 
dition  to  the  motives,  which  usually  actuate  young  men,  I 
was  induced  to  become  a  candidate  for  admission  into  the 
society,  by  the  assurance  that  the  brotherly  love  which  per 
vaded  it  and  the  duties  imposed  on  its  members,  might  be  of 
great  to  me  in  the  vicissitudes  of  fortune  to  which  a  soldier 
was  exposed.  After  the  army  was  disbanded,  I  found  the 
order  in  high  estimation,  and  every  gentleman  I  saw  in  this 
part  of  Virginia  was  a  member.  I  followed  the  crowd  for  a 
time  without  attaching  any  importance  to  its  object,  or  giving 
myself  the  trouble  to  inquire  why  others  did.  It  soon  lost  its 
attraction,  and  though  there  are  several  Lodges  in  the  city 
of  Richmond,  I  have  not  been  in  one  of  them  for  more  than 
forty  years,  except  once,  on  an  invitation  to  accompany  Gen 
eral  La  Fayette,  nor  have  I  been  a  member  of  one  of  them  for 
more  than  thirty.  It  was  impossible  not  to  perceive  the  use 
less  pageantry  of  the  whole  exhibition.  My  friend,  Mr.  Story, 
has  communicated  my  opinions  to  you  truly.  I  thought  it, 
however,  a  harmless  plaything,  which  would  live  its  hour  and 
pass  away,  until  the  murder  or  abstraction  of  Morgan  was 
brought  before  the  public;  —  that  atrocious  crime,  and  I  had 
almost  said,  the  still  more  atrocious  suppression  of  the  testi 
mony  concerning  it,  demonstrated  the  abuse,  of  which  the 
oaths  prescribed  by  the  order  were  susceptible,  and  convinced 
me  that  the  institution  ought  to  be  abandoned,  as  one  capable 
of  producing  much  evil,  and  incapable  of  producing  any  good, 
which  might  not  be  effected  by  safe  and  open  means.  I  give 
you  my  sentiments  without  reserve,  but  in  confidence.  I  have 
attained  an  age  when  repose  becomes  a  primary  wish.  I  am 
unwilling  to  embark  on  any  tempestuous  sea  or  to  engage  as  a 
volunteer  in  any  controversy,  which  may  tend  to  excite  the 
angry  passions.  I  am  unwilling  to  appear  in  the  papers  on 
any  question,  especially  if  it  may  produce  excitement. 

The  Antimasonic  controversy  has  not  crossed  the  Potomac. 
With  you  it  has  become  a  party  question,  which  a  public  man 


DOCTRINES  OF  JOHN  MARSHALL  99 

cannot  escape,  and  on  which  a  decent,  manly  opinion  must  be 
firmly  and  frankly  expressed.  But  I  am  not  a  public  man; 
and  if  I  were,  many  and  extravagant  are  the  tests  by  which  we 
try  the  fitness  of  agents  for  the  service  of  our  country.  This 
has  not  as  yet  become  one  of  them.  Several  of  my  personal 
friends  are  Masons ;  some  few  of  them  more  zealous  than  my 
self.  You  will  therefore  pardon  the  unwillingness  I  express 
that  any  allusion  to  this  letter  should  be  made  in  the  papers. 
Receive  the  assurances  of  the  great  and  respectful  esteem,  with 
which  I  remain, 

Your  obedient, 

J.    MARSHALL.56 

The  following  statement  connecting  Marshall  with  the  Ma 
sonic  society  appears  in  the  "  Vindication  of  General  Wash 
ington  from  the  stigma  of  adherence  to  secret  societies  by 
Joseph  Ritner,  Governor  of  the  Commonwealth  of  Pennsyl 
vania,  communicated  by  request  of  the  House  of  Representa 
tives  to  that  body  on  the  8th  of  March,  1837,  with  the  pro 
ceedings  which  took  place  on  its  reception  "  (Boston,  printed 
by  Ezra  Lincoln)  : 

"  The  annexed  pamphlet  by  Ex-Governor  Ritner  of  Penn 
sylvania  is,  strange  as  the  fact  may  appear,  a  vindication  of 
the  character  of  the  father  of  his  country  against  the  charge 
of  Freemasonry!  That  Washington  was  an  initiate  we  do 
not  doubt,  as  many  other  respectable  individuals  have  been, 
among  whom  may  be  numbered  a  Marshall,  a  Rush,  a  Wirt, 
and  others;  for  it  has  been  the  policy  of  the  detestable,  mur 
derous  society  to  seduce  into  their  ranks  the  most  respectable 
members  of  society,  and  then  to  bind  them  to  the  most  shock 
ing,  anti-christian  oaths,  and  under  the  still  more  shocking  pen 
alties  of  death,  in  various  horrid  forms,  to  keep  the  secrets  of 
the  institution,  which  chiefly  consists,  like  a  band  of  pirates 
and  robbers,  of  the  signs  by  which  they  may  be  known  to  each 
other!  It  is  hardly  necessary  to  add  that  of  100  initiates  99, 
though  bound  by  their  oaths  to  silence,  have  little  more  to  do 
with  the  institution,  although  claimed  as  a  member  and 
'  brother.'  Such  were  '  brother  Washington/  *  brother  Judge 
Marshall,'  and  a  great  number  of  others  who  have  been  hypo- 

56  The  above  letter  and  explanatory  matter  is  printed  in  the  "  Free 
masonry  Pamphlets,"  Vol.  Ill,  Smithsonian  Institution. 


ioo  THE  POLITICAL  AND  ECONOMIC 

critically  brought  within  the  pale  of  Freemasonry.  But  Wash 
ington  did  not  die  without  leaving  to  his  country  his  warning 
voice  against  all  obstructions  to  the  execution  of  the  laws,  all 
combinations  and  associations  under  whatever  plausible  char 
acter.  He  might,  we  repeat,  have  been  an  initiate,  but  no 
freemason,  as  the  reader  of  the  annexed  pamphlet  will  see. 
That  Freemasonry  '  obstructed  the  execution  of  the  laws  '  in 
the  trial  of  Masonic  culprits  in  the  western  counties  of  New 
York  state  by  false  oaths  and  every  other  possible  way,  there 
is  the  most  unequivocal  evidence.  '  In  a  word,'  says  the  late 
Myron  Holley,  speaking  of  Freemasonry,  *  more  detestable 
principles  cannot  be  imagined;  they  excite  to  crime  and  were 
intended  for  shelter  and  protection  of  practical  iniquity ! ' 
This  was  literally  a  truth ;  they  truly  afforded  shelter  and  pro 
tection  to  the  murderers  of  William  Morgan!  But  if,  as  the 
memorable  wretches  tell  you,  that  Freemasonry  is  a  virtuous 
society  it  is  asked  why  females  or  ladies  are  excluded, —  why  in 
sulted  ?  Who  can  read  the  following  oath  of  a  Master  Mason, 
having  a  mother,  wife,  or  sisters,  without  the  height  of  in 
dignation.  '  Furthermore  [that  is  in  addition  to  fifteen  other 
oaths]  do  I  promise  and  swear  that  I  will  not  be  at  the  initiat 
ing,  passing,  or  raising  of  an  old  man  in  dotage,  a  young  man 
in  non-age,  an  atheist,  irreligious  libertine,  madman,  hermaph 
rodite,  woman,  or  a  fool.'  And  again,  *  Furthermore  do  I 
promise  and  swear  that  I  will  not  violate  the  chastity  of  a 
Master  Mason's  wife,  mother,  sister,  or  daughter,  nor  suffer 
it  to  be  done  by  others,  if  in  my  power  to  prevent  it,  I  know 
ing  them  to  be  such,'  thus  giving  a  Master  Mason  free  access 
to  every  other  woman  in  society.  Such  is  freemasonry,  and 
but  a  small  part  of  that  diabolical  institution.  Washington 
saw  not  only  the  folly  but  the  wickedness  of  such  oaths  and 
consequences  that  might  follow  from  an  institution  of  such  a 
character.  And  now  (1841),  would  it  be  believed,  an  effort 
is  making  by  despicable  or  thoughtless  individuals  to  revive  it ! 
Let  us  then,  one  and  all,  frown  on  the  base  attempt;  let  the 
warning  voice  of  the  father  of  his  country  be  listened  to  and 
obeyed;  let  not  a  vestige  remain  of  the  accursed  institution. 
In  a  special  manner,  let  that  degrading  and  disgraceful  silver 
plate,  which  now  lies  under  the  corner  stone  of  the  Bunker 
Hill  Monument,  be  removed  and  the  place  supplied  by  some 
Patriotic  Inscription." 


DOCTRINES  OF  JOHN  MARSHALL  '        101 

At  the  fourth  Antimasonic  Republican  Convention  of  Massa 
chusetts  Held  at  BOSTON,  Sept.  n,  12,  and  13,  1833,  for  the 
nomination  of  candidates  for  Governor  and  Lieutenant  Gov 
ernor  of  the  Commonwealth,  and  "  for  the  purpose  of  con 
sulting  upon  the  common  good,  by  seeking  redress  of  wrongs 
and  grievances  suffered  from  the  secret  societies,"  on  motion 
of  Mr.  Odiorne,  the  Officers  of  the  Convention  were  appointed 
to  communicate  to  the  venerable  Chief  Justice  Marshall,  of  the 
United  States  Supreme  Court,  the  fact  that  he  is  publicly 
held  up  by  Freemasons  and  by  Masonic  presses  as  an  ardent 
advocate  of  that  Institution,  which  he  is  represented  here  as 
having  recently  declared  to  be  "  a  jewel  of  inestimable  value  "  ; 
and  respectfully  to  inquire  of  him  whether,  as  the  biographer 
of  Washington,  he  knows  of  the  existence  of  any  authentic 
originals  or  copies  of  letters  addressed  by  Washington  to  Ma 
sonic  bodies.  See  Freemasonry  Pamphlets,  Smithsonian  In 
stitution,  Vol.  Ill,  p.  43. 

If  corroboration  were  required,  it  is  furnished  by  the  fol 
lowing  letter  from  Chief  Justice  Marshall,  in  reply  to  one  from 
citizens  of  Massachusetts  inquiring  of  him  whether  or  not,  as 
biographer  of  Washington,  he  knew  of  the  existence  of  any 
authentic  originals  or  copies  of  letters  addressed  by  Washing 
ton  to  Masonic  bodies.  The  same  persons  also  inquired 
whether  or  not  the  Chief  Justice  had  declared  the  institution 
of  Masonry  to  be  "  a  jewel  of  the  utmost  value." 

The  letter  follows.  See  Freemasonry  Pamphlets,  Vol.  Ill, 
p.  18. 

RICHMOND,  October  18,  1833. 
SIR, — 

Your  letter  of  the  nth,  transmitting  a  resolution  of  the 
Antimasonic  Convention  of  the  State  of  Massachusetts,  passed 
the  1 3th  of  last  September,  has  just  reached  me.  The  flat 
tering  terms  in  which  that  resolution  is  expressed  claim  and 
receive  my  grateful  acknowledgments. 

The  circumstances  represented  as  attending  the  case  of 
Morgan  were  heard  with  universal  detestation,  but  produced 
no  other  excitement  in  this  part  of  the  United  States,  than 
is  created  by  crimes  of  uncommon  atrocity.  Their  opera 
tion  on  masonry,  whatever  it  might  be,  was  silent,  rather  ar 
resting  its  progress  and  directing  attention  from  the  society, 


102          THE  POLITICAL  AND  ECONOMIC 

than  inducing  any  open,  direct  attack  upon  it.  The  agita 
tions  which  convulse  the  North,  did  not  pass  the  Potomac. 
Consequently,  an  individual  so  much  withdrawn  from  the 
world  as  myself,  entering  so  little  into  the  party  conflicts  of 
the  day,  could  feel  no  motive,  certainly  I  felt  no  inclination, 
to  volunteer  in  a  distant  conflict,  in  which  the  wounds  that 
might  be  received,  would  not  be  soothed  by  the  consoling  re 
flection  that  he  suffered  in  the  performance  of  a  necessary 
duty.  I  never  did  utter  the  words  ascribed  to  me,  nor  any 
other  words  importing  the  sentiment  they  convey.  I  never 
did  say  "  Freemasonry  is  a  jewel  of  the  utmost  value,  that 
the  pure  in  heart  and  life  can  only  appreciate  it  fully,  and 
that  in  a  free  government  it  must,  it  will  be  sustained  and 
protected."  The  fact  mentioned  in  the  resolution,  that  I  have 
been  in  a  Lodge  but  once,  so  far  as  I  can  recollect,  for  nearly 
forty  years,  is  evidence  that  I  have  no  disposition  to  volun 
teer  in  this  controversy,  as  the  zealous  partisan,  which  this 
language  would  indicate.  In  fact  I  have  sought  to  abstain 
from  it.  Although  I  attach  no  importance  to  their  opinions 
I  may  entertain  respecting  masonry,  yet  I  ought  not  to  re 
fuse  on  application,  to  disavow  any  expressions  which  may  be 
ascribed  to  me,  that  I  never  used.  I  have  said  that  I  always 
understood  the  oaths  taken  by  a  mason,  as  being  subordinate 
to  his  obligations  as  a  citizen  to  the  laws,  but  have  never  af 
firmed  that  there  was  any  positive  good  or  ill  in  the  institu 
tion  itself. 

The  resolution  also  inquires  "  whether,  as  a  friend  and 
biographer  of  Washington,  I  have  in  my  possession  or  recol 
lection,  any  knowledge  of  any  acts  of  General  Washington,  or 
any  documents  written  by  him  to  masonic  bodies,  approving 
of  masonry." 

The  papers  of  General  Washington  were  returned  many 
years  past  to  my  lamented  friend,  his  nephew,  and  are 
now,  I  believe,  in  the  possession  of  Mr.  Sparks.  I  do  not 
recollect  ever  to  have  heard  him  utter  a  syllable  on  the  sub 
ject.  Such  a  document,  however,  not  being  of  a  character 
to  make  any  impression  at  the  time,  may  have  passed  my  mem 
ory.  With  great  respect, 

I  am,  Sir, 

Your  ob't  servant, 
To  JOHN  BAILEY,  ESQ.  J.  MARSHALL. 


DOCTRINES  OF  JOHN  MARSHALL  103 

TO  HON.  JUDGE  STORY 

RICHMOND,  November  26th,  1826. 
MY  DEAR  SIR  : 

I  have  deferred  thanking  you  for  the  copy  of  your  Dis 
course  before  the  Society  of  Phi  Beta  Kappa,  until  there  was 
some  probability  that  my  letter  might  find  you  at  Salem. 

But  it  is  time  to  return  to  your  discourse.  I  have  read  it 
with  real  pleasure,  and  am  particularly  gratified  with  your 
eulogy  on  the  ladies.  It  is  a  matter  of  great  satisfaction  to 
me  to  find  another  Judge,  who  though  not  as  old  as  myself, 
thinks  justly  of  the  fair  sex,  and  commits  his  sentiments  to 
print.  I  was  a  little  mortified,  however,  to  find  that  you  had 
not  admitted  the  name  of  Miss  Austen  into  your  list  of  fav 
orites.  I  had  just  finished  reading  her  novels  when  I  re 
ceived  your  discourse,  and  was  so  much  pleased  with  them  that 
I  looked  in  it  for  her  name,  and  was  rather  disappointed  at 
not  finding  it.  Her  flights  are  not  lofty,  she  does  not  soar 
on  eagle's  wings,  but  she  is  pleasing,  interesting,  equable,  and 
yet  amusing.  I  count  on  your  making  some  apology  for  this 
omission.  .  .  . 

Farewell. 

With  esteem  and  affection, 

I  am  yours, 

J.    MARSHALL.57 

TO  HON.  JOSEPH  STORY 

RICHMOND,  July  3ist,  1833. 
MY  DEAR  SIR  : 

I  have  finished  reading  your  great  work,  and  wish  it  could 
be  read  by  every  statesman,  and  every  would-be  statesman  in 
the  United  States.  It  is  a  comprehensive  and  an  accurate 
commentary  in  our  Constitution,  formed  in  the  spirit  of  the 
original  text.  In  the  South,  we  are  so  far  gone  in  political 
metaphysics  that  I  fear  no  demonstration  can  restore  us  to 
common  sense.  The  word  "  State  Rights,"  as  expounded  by 
the  resolutions  of  '98  and  the  report  of  '99,  construed  by  our 
legislature,  has  a  charm  against  which  all  reasoning  is  vain. 
Those  resolutions  and  that  report  constitute  the  creed  of  every 

57  The  above  letter  is  printed  in  the  "  Life  and  Letters  of  Judge  Story," 
Vol.  I,  pp.  505-506. 


104  THE  POLITICAL  AND  ECONOMIC 

politician,  who  hopes  to  rise  in  Virginia ;  and  to  question  them, 
or  even  to  adopt  the  construction  given  by  their  author,  is 
deemed  political  sacrilege.  The  solemn  and  interesting  ad 
monitions  of  your  concluding  remarks  will  not,  I  fear,  avail 
as  they  ought  to  avail  against  this  popular  frenzy. 

I  am  grateful  for  the  very  flattering  terms  in  which  you 
speak  of  your  friend  in  many  parts  of  this  valuable  work,  as 
well  as  in  the  dedication.  In  despite  of  my  vanity,  I  cannot 
suppress  the  fear,  that  you  will  be  supposed  by  others,  as 
well  as  myself,  to  have  consulted  a  partial  friendship  farther 
than  your  deliberate  judgment  will  approve.  Others  may 
not  contemplate  this  partiality  with  as  much  gratification  as 
its  object. 

Your  affectionate  friend, 

J.    MARSHALL.57*1 

TO  HON.  JOSEPH  STORY 

RICHMOND,  July  3ist,  1833. 
MY  DEAR  SIR  : 

I  have  received  the  third  number  of  the  "  National  Por 
trait  Gallery,"  and  know  not  in  what  terms  to  express  my 
obligations  to  you  for  the  more  than  justice  you  have  done  the 
character  of  your  brother  Judge.  In  this  instance,  too,  all 
must  perceive  the  partiality  of  a  friend.  Be  assured  that  he, 
on  whom  that  partiality  is  bestowed,  will  carry  with  him  to 
the  grave  a  deep  sense  of  it.  I  am  particularly  gratified  by 
the  terms  in  which  you  speak  of  my  father.  If  any  con 
temporary,  who  knew  him  in  the  prime  of  manhood,  sur 
vived,  he  would  confirm  all  you  say  of  him. 

I  have  received  the  paper  containing  your  opinion  in  the 
very  important  case  of  Allen  V.  McKean.  It  is  impossible 
a  subject  could  have  been  brought  before  you  on  which  you 
are  more  completely  au  fait.  It  would  seem  as  if  the  State 
legislatures  (many  of  them,  at  least)  have  an  invincible  hos 
tility  to  the  sacredness  of  charters.  From  the  paper,  I  should 
conjecture  that  this  case  will  proceed  no  further. 
Your  affectionate  friend, 

J.    MARSHALL.58 

"a  Story's  "  Life  and  Letters,"  Vol.  II,  pp.  135-136. 
158  The  above  letter  is  printed  in  Story's  "  Life  and  Letters,"  Vol.  II,  p. 
150. 


DOCTRINES  OF  JOHN  MARSHALL         (105 


TO  HON.  JOSEPH  STORY 

RICHMOND,  October  6th,  1834. 
MY  DEAR  SIR  : 

On  my  return  a  day  or  two  past  from  an  annual  visit  to 
our  mountains,  I  had  the  real  gratification  of  receiving  a  num 
ber  of  the  New  England  Magazine  for  August  last,  contain 
ing  an  essay,  entitled  "  Statesmen :  their  rareness  and  impor 
tance,"  forwarded  to  me  by  yourself,  and  thank  you  truly  for 
the  real  pleasure  afforded  by  its  perusal. 

The  justness  and  solidity  of  its  sentiments,  the  distinguished 
individual  who  is  selected  as  an  example  of  the  real  states 
man,  and  the  kind  notice  taken  of  an  old  friend  who  is  under 
so  many  obligations  to  you,  designate  the  author  as  cer 
tainly  as  if  his  name  had  been  affixed  to  the  work. 

It  is  in  vain  to  lament,  that  the  portrait  which  the  author 
has  drawn  of  our  political  and  party  men,  is,  in  the  general, 
true.  Lament  it  as  we  may,  much  as  it  may  wound  our  vanity 
or  our  pride,  it  is  still,  in  the  main,  true;  and  will  I  fear,  so 
remain. 

In  the  South,  political  prejudice  is  too  strong  to  yield  to 
any  degree  of  merit;  and  the  great  body  of  the  nation  con 
tains,  at  leasl  appears  to  me  to  contain,  too  much  of  the  same 
ingredient.  QTo  men  who  think  as  you  and  I  do,  the  present 
is  gloomy  enough ;  and  the  future  presents  no  cheering  pros 
pect.  The  struggle  now  maintained  in  every  State  in  the 
Union  seems  to  me  to  be  of  doubtful  issue;  but  should  it  ter 
minate  contrary  to  the  wishes  of  those  who  support  the  enor 
mous  pretensions  of  the  Executive,  should  victory  crown  the 
exertions  of  the  champions  of  constitutional  law,  what  se 
rious  and  lasting  advantage  is  to  be  expected  from  his  re 
sult?  In  the  South  (things  may  be  less  gloomy  with  you) 
those  who  support  the  Executive  do  not  support  the  Govern 
ment.  They  sustain  the  personal  power  of  the  President,  but 
labor  incessantly  to  impair  the  legitimate  powers  of  the  Gov 
ernment.  Those  who  oppose  the  violent  and  rash  measures 
of  the  Executive  (many  of  them  nullifiers,  many  of  them  se- 
ceders,)  are  generally  the  bitter  enemies  of  a  constitutional 
government.  Many  of  them  are  the  avowed  advocates  of  a 
league;  and  those  who  do  not  go  the  whole  length,  go  great 
part  of  the  way.  What  can  we  hope  for  in  such  circum 
stances?  As  far  as  I  can  judge,  the  Government  is  weakened, 


io6  THE  POLITICAL  AND  ECONOMIC 

/whatever  party  may  prevail.     Such  is  the  impression  I  receive 
(from  the  language  of  those  around  me. 

^  Before  leaving  Richmond  I  had  finished  your  treatise  on 
'  The  Conflict  of  Laws,"  and  am  much  pleased  with  it.  I 
was  a  good  deal  surprised  at  the  diversity  of  opinion  among 
writers  on  the  general  law  of  Continental  Europe.  I  was  sur 
prised  to  find  that  there  were  still  more  doubtful  questions 
growing  out  of  the  civil  than  out  of  the  common  law.  I 
wonder,  too,  how  you  ever  have  performed  so  laborious  a 
task.  You  certainly  love  work  for  its  own  sake. 

With  us  the  natural  atmosphere  has  been  as  stormy,  as 
V  tempestuous,  and  in  allrespects  as  extraordinary  as  the  politi- 
Vcal.  Yet,  I  remain  in  good  health,  and  as  usual, 

Your  faithful  friend, 

J.    MARSHALL.58*1 

The  following  twenty-six  letters,  dealing  mainly  with  the 
political  and  legal  questions  of  that  period,  were  written  by 
Marshall  to  Story  between  the  dates  1819  and  1834.  They 
were  first  published  by  the  Massachusetts  Historical  Society. 

THE  HON'BLE  JOSEPH  STORY, 

Salem,  Massachusetts. 

RICHMOND,  March  24th,  1819. 
DEAR  SIR  : 

Since  my  return  to  Washington  I  mentioned  to  a  very  near 
friend  who  owns  an  extensive  nail  factory  that  I  had  under 
stood  that  some  machinery  was  in  use  in  &  about  Boston 
which  greatly  facilitated  the  making  of  nails.  He  was  anx 
ious  to  have  some  account  of  the  machine  which  I  was  totally 
unable  to  give. 

I  have  some  idea  that  the  subject  was  mentioned  by  you,— 
at  any  rate  it  was  mentioned  in  your  presence.  I  under 
stood  that  there  were  two  machines,  one  very  expensive,  the 
other  almost  equally  valuable  &  costing  only  about  one  hun 
dred  dollars.  If  you  have  leisure  will  you  have  the  good 
ness  to  mention  in  a  letter  to  me  what  these  machines  are 
called,  what  is  their  operation,  &  what  they  cost?  You  can 
probably  say  something  about  their  advantages. 

ssa  Story's  "Life  and  Letters,"  Vol.  II,  p.  172. 


DOCTRINES  OF  JOHN  MARSHALL          107 

Our  opinion  in  the  Bank  case  has  roused  the  sleeping  spirit 
of  Virginia,  if  indeed  it  ever  sleeps.  It  will,  I  understand,  be 
attacked  in  the  papers  with  some  asperity,  and  as  those  who 
favor  it  never  write  for  the  publick  it  will  remain  undefended 
&  of  course  be  considered  as  damnably  heretical. 

Yours  truly, 

J.  MARSHALL. 

The  Bank  case  mentioned  is  the  case  of  McCulloch  v.  the 
State  of  Maryland  (4  Wheaton  Reports),  denying  the  right 
of  a  state  to  tax  the  Bank  of  the  United  States. 

At  the  foot  of  this  letter  is  the  following  memorandum  in 
the  handwriting  of  Daniel  Webster: 

"  Mr.  Baldwin  &  Mr.  May  referred  me  to  Mr.  Geo.  Odiorne. 
I  have  seen  him;  he  says  he  will  send  one,  all  fitted  for  use, 
for  200  Dlls.,  altho  that  is  below  his  usual  price,  &  he 
would  not  engage  to  sell  another  at  that  rate.  The  machine 
can  be  shipped  here  for  Richmond,  on  request.  I  believe  this 
to  be  the  least  expensive,  &  is  the  machine  which  is  in  suc 
cessful  operation  in  various  places.  D.  W." 

THE  HON'BLE  JOSEPH  STORY, 

Salem, 

Massachusetts. 

RICHMOND,  May  27th,  1819. 
MY  DEAR  SIR  : 

I  had  the  pleasure  of  receiving  a  few  days  past  your  favour 
of  the  1 5th,  &  thank  you  very  sincerely  for  the  informa 
tion  you  have  given  respecting  the  nail  machines  in  use  in 
your  country.  The  information  will  be  valuable  to  my 
friend. 

I  am  much  obliged  by  the  alterations  you  have  made  in 
the  opinion  in  the  Dartmouth  College  case,  &  am  highly  grati 
fied  by  what  you  say  respecting  it.  The  opinion  in  the  Bank 
case  continues  to  be  denounced  by  the  democracy  in  Virginia. 
An  effort  is  certainly  making  to  induce  the  legislature  which 
will  meet  in  December  to  take  up  the  subject  &  to  pass  resolu 
tions  not  very  unlike  those  which  were  called  forth  by  the  alien 
and  sedition  laws  in  1799.  Whether  the  effort  will  be  suc 
cessful  or  not  may  perhaps  depend  in  some  measure  on  the 


io8  THE  POLITICAL  AND  ECONOMIC 

sentiments  of  our  sister  states.  To  excite  this  ferment  the 
opinion  has  been  grossly  misrepresented;  and  where  its  argu 
ment  has  been  truly  stated  it  has  been  met  by  principles  one 
would  think  too  palpably  absurd  for  intelligent  men.  But 
prejudice  will  swallow  anything.  If  the  principles  which  have 
been  advanced  on  this  occasion  were  to  prevail  the  constitu 
tion  would  be  converted  into  the  old  confederation.  The 
piece  to  which  you  allude  was  not  published  in  Virginia.  Our 
patriotic  papers  admit  no  such  political  heresies.  It  'con 
tained,  I  think,  a  complete  demonstration  of  the  fallacies  & 
errors  contained  in  those  attacks  on  the  opinion  of  the  Court 
which  have  most  credit  here  &  are  supposed  to  proceed  from 
a  high  source,  but  was  so  mangled  in  the  publication  that 
those  only  who  had  bestowed  close  attention  to  the  subject 
could  understand  it.  There  were  two  numbers  &  the  editor 
of  the  Union  in  Philadelphia,  the  paper  in  which  it  was  pub 
lished,  had  mixed  the  different  numbers  together  so  as  in 
several  instances  to  place  the  reasoning  intended  to  demon 
strate  one  proposition  under  another.  The  points  &  argu 
ments  were  so  separated  from  each  other,  &  so  strangely 
mixed  as  to  constitute  a  labyrinth  to  which  those  only 
who  understood  the  whole  subject  perfectly  could  find  a  clue. 

I  wish  to  consult  you  on  a  case  which  to  me  who  am  not 
versed  in  admiralty  proceedings  has  some  difficulty.  The  Lit 
tle  Charles  was  libelled  for  a  violation  of  the  first  embargo 
act  in  1808.  She  was  acquitted  in  the  District,  but  con 
demned  in  the  Circuit  Court.  After  a  thousand  delays  a  ques 
tion  is  now  before  the  Circuit  Court  as  a  Court  of  Admi 
ralty  for  judgement  on  the  bond  given  on  the  property  being 
restored.  Several  objections  are  made,  two  of  which  de 
serve  consideration. 

The  first  is  that  the  order  for  restoration  was  made, 
not  in  court,  but  by  the  Judge  out  of  court,  not  at  a 
called  court  (and)  second  that  the  bond  was  taken  by  the 
marshal  to  himself  &  not  to  the  U.  S.  Upon  this  order 
the  vessel  was  delivered,  &  this  bond  has  been  returned  to 
court,  but  has  not  been  acted  on.  Nor  is  there  any  act  of 
the  Court  approving  the  proceeding.  It  is  contended  to  be 
a  mere  act  in  pais  not  sanctioned  by  the  court.  That  it  is  the 
unauthorized  act  of  the  marshal  who  might  release  the  bond 


DOCTRINES  OF  JOHN  MARSHALL  109 

or  sue  upon  it,  and  that  the  court  cannot  consider  it  as  in  the 
place  of  the  vessel  and  so  act  upon  it. 

With  great  regard  and  esteem,  I  am,  dear  Sir, 

your  obedt 

J.  MARSHALL. 


THE  HON'BLE  JOSEPH  STORY, 
Salem, 

Massachusetts. 

RICHMOND,  July  i3th,  1819. 
MY  DEAR  SIR: 

I  had  the  pleasure,  this  morning  of  receiving  your  letter  of 
the  7th,  by  which  I  am  greatly  obliged.  I  shall  at  the  next 
term  decide  the  case  of  the  Little  Charles  in  conformity  with 
your  reasoning.  It  is,  I  think,  perfectly  sound ;  &  were  this 
even  questionable  the  practice  of  the  courts  ought  to  be  uni 
form. 

Another  admiralty  question  of  great  consequence  has  oc 
curred  at  the  last  term  which  I  would  bring  before  the  Su 
preme  Court,  if  I  could,  but  as  I  have  not  the  privilege  of  di 
viding  the  Court  when  alone,  &  as  the  sum  is  only  about 
1500$,  it  must  abide  by  my  decision.  It  is,  however,  one  of 
general  importance,  &  I  must  ask  the  favor  of  you  to  give  me 
your  views  of  it. 

A  vessel  belonging  to  the  port  of  Richmond  in  Virginia 
was  hypothecated  for  necessary  repairs  in  New  York  &  has 
been  libelled  in  the  District  Court  of  this  State.  The  District 
Judge  condemned  her,  &  the  case  is  before  me  on  an  appeal. 
It  has  been  agreed  that  New  York  is  as  much  foreign  to  Vir 
ginia  as  Ireland  or  Guernsey  to  England.  It  has  also  been 
agreed  that  the  power  of  hypothecation  on  simple  interest  is 
not  so  strictly  guarded  as  the  power  of  pledging  the  ship  on 
bottomry  for  usurious  interest. 

From  a  consideration  of  this  case  I  have  been  led  to  doubt 
what  rule  ought  to  be  adopted  in  the  United  States,  &  to 
question  the  propriety  of  applying  the  rule  in  England  to  our 
situation.  The  foundation  of  the  rule  is  that  in  a  foreign  port 
this  exercise  of  ownership  on  the  part  of  the  master  may  be 
necessary  whereas  in  a  domestic  port  it  cannot  be  presumed 
to  be  so.  Now  let  the  ports  of  one  state  be  considered  as 


no  THE  POLITICAL  AND  ECONOMIC 

foreign  or  domestic  with  respect  to  the  vessels  of  another  & 
cases  may  arise  in  which  the  literal  application  of  the  rule 
would  violate  its  principle.  It  would  be  absurd  that  a  vessel 
belonging  to  Amboy  should  be  hypothecated  in  New  York. 
But  the  same  vessel  at  New  Orleans  or  in  the  mouth  of  Col 
umbia  would  be  completely  out  of  the  reach  of  the  owner. 
The  necessity  for  exercising  this  power  by  the  master  would 
be  much  stronger  than  in  the  case  of  a  vessel  belonging  to  one 
side  of  the  bay  of  Passimiquoddy  hypothecated  in  a  port  on 
the  other. 

I  do  not  think  a  republication  of  the  piece  you  mention  in 
the  Boston  papers  to  be  desired,  as  the  antifederalism  of  Vir 
ginia  will  not,  I  trust,  find  its  way  to  New  England.  I  should 
also  be  sorry  to  see  it  in  Mr.  Wheaton's  appendix  because  that 
circumstance  might  lead  to  suspicions  respecting  the  author 
&  because  I  should  regret  to  see  it  republished  in  its  present 
deranged  form  with  the  two  centres  transposed. 

I  am  highly  gratified  by  the  sentiments  you  express,  &  shall 
always  feel  a  grateful  recollection  of  them.  The  esteem  of 
those  we  esteem  is  among  the  most  delightful  sensations  of 
the  human  heart. 

I  had  never  thought  of  preparing  an  opinion  in  the  militia 
case.  That  is  committed  to  you,  &  cannot  be  in  better  hands. 
I  shall  just  sketch  my  ideas  for  the  purpose  of  examining  them 
more  closely,  but  shall  not  prepare  a  regular  opinion.  As  at 
present  disposed  I  do  not  think  we  shall  differ. 
With  very  much  esteem  and  regard, 

I  am,  dear  Sir,  your  obed 

J.  MARSHALL. 

The  Lottery  case  mentioned  in  the  following  letter  is  that 
of  Cohens  v.  Virginia  (6  Wheaton's  Reports),  in  which  the 
Court  maintained  its  jurisdiction,  even  in  a  criminal  case,  to 
review  the  judgments  of  the  State  Courts  on  Federal  ques 
tions. 

Spencer  Roane,  a  judge  of  the  Virginia  Court  of  Errors 
and  a  warm  friend  of  Jefferson,  attacked  the  Supreme  Court 
in  the  Richmond  Enquirer,  under  the  pseudonym  of  Algernon 
Sydney, —  a  name  that  has  often  been  adopted  by  writers  of 
the  press. 


DOCTRINES  OF  JOHN  MARSHALL          in 

MR.  JUSTICE  STORY, 
Salem, 

Massachusetts. 

RICHMOND,  June  I5th,  1821. 
DEAR  SIR: 

A  question  has  occurred  in  the  course  of  this  term  which  I 
have  taken  under  advisement  for  the  purpose  of  enquiring 
whether  it  has  been  decided  by  my  brethren.  It  is  this:  A 
&  B  trading  under  the  firm  of  A,  B  &  Co.  were  indebted  to 
the  U.  S.  on  bonds  for  duties.  They  made  an  assignment  of 
all  their  social  effects  to  secure  certain  creditors  of  the  firm. 
A  had  private  property  to  a  considerable  amount,  which  he 
afterwards  conveyed  to  secure  his  individual  creditors.  The 
question  is,  whether  the  first  conveyance  was  an  act  of  in 
solvency  within  the  act  of  Congress  so  that  the  priority  of  the 
U.  S.  attached  on  the  social  effects,  or  whether  the  act  of 
insolvency  was  not  committed  until  the  execution  of  the  sec 
ond  deed.  The  question  arises  on  a  contest  between  the 
creditors  secured  by  the  two  deeds,  each  contending  that  the 
claim  of  the  U.  S.  should  be  satisfied  by  the  other.  Had  the 
second  deed  never  been  executed,  would  the  first  have 
amounted  to  an  act  of  insolvency  on  the  part  of  the  firm?  If 
the  case  has  ever  occurred  in  your  circuit,  I  shall  be  glad  to 
know  how  it  has  been  decided.  If  it  has  never  occurred,  you 
will  oblige  me  by  stating  your  opinion  on  it  if  you  have  one. 

The  opinion  of  the  Supreme  Court  in  the  Lottery  case  has 
been  assaulted  with  a  degree  of  virulence  transcending  what 
has  appeared  on  any  former  occasion.  Algernon  Sidney  is 
written  by  the  gentleman  who  is  so  much  distinguished  for 
his  feelings  towards  the  Supreme  Court,  &  if  you  have  not 
an  opportunity  of  seeing  the  Elnquirer  I  will  send  it  to  you. 
There  are  other  minor  gentry  who  seek  to  curry  favor  &  get 
into  office  by  adding  their  mite  of  abuse,  but  I  think  for  coarse 
ness  &  malignity  of  invention  Algernon  Sidney  surpasses 
all  party  writers  who  have  ever  made  pretensions  to  any  de 
cency  of  character.  There  is  on  this  subject  no  such  thing 
as  a  free  press  in  Virginia,  and  of  consequence  the  calumnies 
and  misrepresentations  of  this  gentleman  will  remain  uncon- 
tradicted  &  will  by  many  be  believed  to  be  true.  He  will  be 
supposed  to  be  the  champion  of  state  rights,  instead  of  being 


ii2  THE  POLITICAL  AND  ECONOMIC 

what  he  really  is,  the  champion  of  dismemberment.     With 
great  regard  and  esteem, 

I  am,  dear  Sir,  yours,  &c., 

J.  MARSHALL. 

I  am  anxious  to  know  whether  that  amendment  of  the 
constitution  on  which  Mr.  Webster  &  yourself  were  so  dis 
tinguished  has  been  approved  or  rejected  by  your  sapient 
people. 

The  last  part  of  the  above  letter  is  in  reference  to  the  part 
taken  by  Mr.  Webster  and  Judge  Story  in  the  debates  on  the 
apportionment  of  the  Senate  and  the  House  of  Representa 
tives.  The  people  rejected  the  amendment  when  it  was  sub 
mitted  to  them. 

The  letter  commented  on  by  Judge  Marshall  in  the  following 
letter  is  very  likely  the  one  to  William  C.  Jarvis,  printed  in 
Washington's  edition  of  the  "  Writings  of  Thomas  Jefferson," 
Vol.  VII,  pp.  177-179,  in  which  Jefferson  denies  the  right 
of  the  judges  to  issue  a  mandamus  to  any  "  executive  or  legis 
lative  officer  to  enforce  the  fulfillment  of  their  official  duties," 
and  asserts  that  it  is  a  "  very  dangerous  doctrine  "  "  to  con 
sider  the  judges  as  the  ultimate  arbiters  of  all  constitutional 
questions." 

At  the  end  of  the  next  to  the  last  paragraph  there  is  this 
sentence,  "  The  case  of  the  mandamus  may  be  the  cloak,  but 
the  batture  is  recollected  with  still  more  resentment."  The 
first  part  of  this  sentence  refers  to  the  opinion  of  the  Chief 
Justice  in  the  case  of  Marbury  v.  Madison,  i  Cranch,  153. 
The  second  part  refers  to  the  protracted  litigation  which  in 
volved  the  title  to  what  was  known  as  the  batture,  near  New 
Orleans,  in  which  Mr.  Jefferson  took  a  strong  personal  in 
terest.  The  copy  of  the  debates  he  asks  for  are  the  De 
bates  in  the  Massachusetts  Convention,  which  were  published 
in  1821,  from  the  reports  of  the  "Boston  Daily  Advertiser," 
and  which  were  reprinted  in  1853. 

THE  HON'BLE  MR.  JUSTICE  STORY, 
Salem, 

Massachusetts.  RICHMOND,  July  I3th,  1821. 

MY  DEAR  SIR: 

I  had  yesterday  tte  pleasure  of  receiving  your  letter  of  the 


DOCTRINES  OF  JOHN  MARSHALL 

27th  of  June,  by  which  I  am  greatly  obliged.  I  shall  decide 
the  case  concerning  which  I  enquired  in  conformity  with  your 
opinion.  The  law  of  the  case  I  have  thought  very  doubt 
ful  ;  the  equity  of  it  is,  I  think,  pretty  clear. 

Your  kind  expression  respecting  myself  gratify  me  very 
much.  Entertaining  the  truest  affection  &  esteem  for  my 
brethren  generally,  &  for  yourself  particularly,  it  is  extremely 
grateful  to  believe  that  it  is  reciprocated.  The  harmony  of 
the  bench  will,  I  hope  &  pray,  never  be  disturbed.  We  have 
external  and  political  enemies  enough  to  preserve  internal 
peace. 

What  you  say  of  Mr.  Jefferson's  letter  rather  grieves  than 
surprises  me.  It  grieves  me  because  his  influence  is  still  so 
great  that  many,  very  many,  will  adopt  his  opinions,  however 
unsound  they  may  be,  &  however  contradictory  to  their  own 
reason.  I  cannot  describe  the  surprize  &  mortification  I  have 
felt  at  hearing  that  Mr.  Madison  has  embraced  them  with  re 
spect  to  the  judicial  department. 

For  Mr.  Jefferson's  opinion  as  respects  this  department  it 
is  not  difficult  to  assign  the  cause.  He  is  among  the  most 
ambitious,  &  I  suspect  among  the  most  forgiving  of  men.  His 
great  power  is  over  the  mass  of  the  people,  &  this  power  is 
chiefly  acquired  by  professions  of  democracy.  Every  check 
on  the  wild  impulse  of  the  moment  is  a  check  on  his  own 
power,  &  he  is  unfriendly  to  the  source  from  which  it  flows. 
He  looks  of  course  with  ill-will  at  an  independent  judiciary. 

That  in  a  free  country  with  a  written  constitution  any  in 
telligent  man  should  wish  a  dependent  judiciary,  or  should 
think  that  the  constitution  is  not  a  law  for  the  court  as  well 
as  the  legislature  would  astonish  me,  if  I  had  not  learnt  from 
observation  that  with  manj^  men  the  ju^emeat,.isL.CQnipletely 
controlled  by  the  passions.  The  case  of  the  mandamus  may 
"be  the  cToaTcHbut  the  batture  is  recollected  with  still  more  re 
sentment. 

I  send  you  the  papers  containing  the  essays  of  Algernon 
Sydney.  Their  coarseness  &  malignity  would  designate  the 
author  if  he  was  not  avowed.  The  argument,  if  it  may  be 
called  one,  is,  I  think,  as  weak  as  its  language  is  violent  and 
prolix.  Two  other  gentlemen  have  appeared  in  the  papers  on 
this  subject;  one  of  them  is  deeply  concerned  in  pillaging  the 
purchasers  of  the  Fairfax  estate,  in  which  goodly  work  he 


n4  THE  POLITICAL  AND  ECONOMIC 

fears  no  other  obstruction  than  what  arises  from  the  appelate 
power  of  the  Supreme  Court,  &  the  other  is  a  hunter  after 
office  who  hopes  by  his  violent  hostility  to  the  Union,  which 
in  Virginia  assumes  the  name  of  regard  for  state  rights,  & 
by  his  devotion  to  Algernon  Sydney,  to  obtain  one.  In  sup 
port  of  the  sound  principles  of  the  constitution  &  of  the  Union 
of  the  States,  not  a  pen  is  drawn.  In  Virginia  the  tendency 
of  things  verges  rapidly  to  the  destruction  of  the  government 
&  the  re-establishment  of  a  league  of  sovereign  states.  I  look 
elsewhere  for  safety. 

With  very  much  esteem  &  affection, 

I  am,  dear  Sir,  your 

J.  MARSHALL. 
I  will  thank  you  for  the  copy  of  the  debates. 

The  Mr.  Hall  mentioned  in  the  following  letter  was  Mr. 
John  E.  Hall,  editor  of  a  law  journal  published  in  the  city  of 
Philadelphia.  From  1808  to  1817  he  published  "  The  Ameri 
can  Law  Journal."  In  1821  he  published  one  volume  of 
"  The  Journal  of  Jurisprudence,"  which  was  intended  to  be  a 
continuation  of  the  former  periodical,  but  no  more  volumes 
were  published.  The  article  referred  to  in  this  letter,  against 
the  Supreme  Court,  is  not  printed  in  this  journal.  The  ad 
dress  which  Mr.  Story  made  to  the  Suffolk  Bar  was  not 
printed  until  1829,  when  it  was  printed  in  the  "  American 
Jurist." 

You  will  notice  the  reference  Judge  Marshall  makes  in 
this  letter  to  his  greatest  enemy,  Thomas  Jefferson.  Judge 
Marshall  was  almost  certain  that  Mr.  Jefferson  was  back  of 
the  whole  movement.  What  they  really  meant  to  do  was  to 
oust  Judge  Marshall;  all  the  evidence  available  at  present 
seems  to  substantiate  this. 

THE  HON'BLE  MR.  JUSTICE  STORY, 
Salem, 

Massachusetts. 

RICHMOND,  Septr  i8th,   1821. 
MY  DEAR  SIR: 

I  had  yesterday  the  pleasure  of  receiving  your  favor  of  the 
9th.  I  thank  you  for  your  quintal  of  fish,  &  shall  try  my  pos 
sibles  to  observe  your  instructions  in  the  cooking  department. 


DOCTRINES  OF  JOHN  MARSHALL  115 

I  hope  to  succeed,  but  be  this  as  it  may  I  promise  to  feed  on 
the  fish  with  an  appetite  which  would  not  disgrace  a  genuine 
descendent  of  one  of  the  Pilgrims. 

I  am  a  little  surprized  at  the  request  which  you  say  has  been 
made  to  Mr.  Hall,  although  there  is  no  reason  for  my  being 
so.  The  settled  hostility  of  the  gentleman  who  has  made  that 
request  to  the  judicial  department  will  show  itself  in  that 
&  in  every  other  form  which  he  believes  will  conduce  to  its 
object.  For  this  he  has  several  motives,  &  it  is  not  among 
the  weakest  that  the  department  would  never  lend  itself  as  a 
tool  to  work  for  his  political  power.  The  Batture  will  never 
be  forgotten.  Indeed  there  is  some  reason  to  believe  that  the 
essays  written  against  the  Supreme  Court  were,  in  a  degree 
at  least,  stimulated  by  this  gentleman,  and  that  although  the 
coarseness  of  the  language  belongs  exclusively  to  the  author, 
its  acerbity  has  been  increased  by  his  communications  with  the 
great  Lama  of  the  mountains.  He  may  therefore  feel  him 
self  in  some  measure  required  to  obtain  its  republication  in 
some  place  of  distinction.  But  what  does  Mr.  Hall  purpose 
to  do?  I  do  not  suppose  you  would  willingly  interfere  so  as 
to  prevent  his  making  the  publication,  although  I  really  think 
it  is  in  form  &  substance  totally  unfit  to  be  placed  in  his  law 
journal.  I  really  think  a  proper  reply  to  the  request  would  be 
to  say  that  no  objection  existed  to  the  publications  of  any 
law  argument  against  the  opinion  of  the  Supreme  Court,  but 
that  the  coarseness  of  its  language,  its  personal  &  official 
abuse,  &  its  tedious  prolixity  constituted  objections  to  the  in 
sertion  of  Algernon  Sydney  which  were  insuperable.  If, 
however,  Mr.  Hall  determines  to  comply  with  this  request,  I 
think  he  ought,  unless  he  means  to  make  himself  a  party  mili 
tant,  to  say  that  he  published  that  piece  by  particular  request, 
&  ought  to  subjoin  the  masterly  answer  of  Mr.  Wheaton.  I 
shall  wish  to  know  what  course  Mr.  Hall  will  pursue. 

I  have  not  yet  received  the  debates  in  your  convention.  Mr. 
Caldwell  I  presume  has  not  met  with  an  opportunity  to  send 
the  volume.  I  shall  read  it  with  much  pleasure. 

I  have  seen  a  sketch  of  your  address  to  the  Suffolk  bar,  & 
shall  be  very  glad  to  have  it  at  large.  I  have  no  doubt  of  be 
ing  much  gratified  by  the  manner  in  which  the  subjects  you 
mention  are  treated. 

A  deep  sign  to  convert  our  government  into  a  mere  league 


ii6  THE  POLITICAL  AND  ECONOMIC 

of  states  has  taken  a  strong  hold  of  a  powerful  &  violent 
party  in  Virginia.  The  attack  upon  the  judiciary  is  in  fact  an 
attack  upon  the  union.  The  judicial  department  is  well  un 
derstood  to  be  that  through  which  the  government  may  be  at 
tacked  most  successfully,  because  it  is  without  patronage,  & 
of  course  without  power.  And  it  is  equally  well  understood 
that  every  subtraction  from  its  jurisdiction  is  a  vital  wound 
to  the  government  itself.  The  attack  upon  it,  therefore,  is  a 
masked  battery  aimed  at  the  government  itself.  The  whole 
attack,  if  not  originating  with  Mr.  Jefferson,  is  obviously  ap 
proved  &  guided  by  him.  i  It  is,  therefore,  formidable  in 
other  states  as  well  as  in  this,  &  it  behooves  the  friends  of  the 
union  to  be  more  on  the  alert  than  they  have  been.  An  effort 
will  certainly  be  made  to  repeal  the  25th  sec.  of  the  judi 
cial. 

I  have  a  case  before  me  which  cannot  be  carried  up  to  the 
Supreme  Court  &  which  presents  difficulties  which  appear  to 
me  to  be  considerable.  It  is  an  action  of  debt  brought  by  the 
U.  S.  for  a  forfeiture  incurred  by  rescuing  some  distilled 
spirits  which  had  not  been  proceeded  on  by  the  distiller  ac 
cording  to  law. 

The  declaration  charges  in  the  alternative  that  the  defend 
ants,  or  one  of  them,  rescued  or  caused  to  be  rescued,  &c. 

It  is  clear  enough  that  this  would  be  ill  in  an  indictment  or 
information,  but  I  am  inclined  to  think  it  is  cured  by  our 
statute  of  jeofails.  The  defendants  insist  that  this  statute 
does  not  apply  to  suits  brought  by  the  U.  S.,  but  I  think  it 
does. 

Another  difficulty  has  puzzled  me  so  much  that  I  have 
taken  the  case  under  advisement  with  the  intention  of  con 
sulting  some  of  my  more  experienced  brethren. 

The  difficulty  is  this.  At  the  trial  the  rescue  was  proved 
only  by  two  depositions.  Each  contains  the  following  ex 
pressions,  "  On  Novr  I7th,  1815,  agreeable  to  written  &  ver 
bal  instructions  from  Mr.  William  McKinley,  collector,"  &c. 

The  defendants  demurred  to  the  testimony  &  the  District 
Court  gave  judgement  for  the  plaintiffs. 

It  is  contended,  ist,  That  there  is  no  sufficient  evidence  that 
McKinley  is  collecter.  His  commission  ought  to  be  pro 
duced  &  its  absence  cannot  be  supplied,  but  there  is  not  even  a 
direct  averment  that  he  is  collector.  2d,  The  written  instruc- 


DOCTRINES  OF  JOHN  MARSHALL          117 

tions  of  the  collector  ought  to  be  produced  to  show  that  the 
seizure  was  made  under  his  authority. 

You  are  accustomed  to  these  cases.  Will  you  aid  me  with 
your  advice? 

Yours  truely  &  sincerely, 

J.  MARSHALL. 

THE  HON'BLE  MR.  JUSTICE  STORY, 
Salem, 

Massachusetts. 

RICHMOND,  July  2d,  1823. 
MY  DEAR  SIR: 

I  had  the  pleasure  a  few  days  past  of  receiving  your  letter 
of  the  22d  of  June  &  am  greatly  obliged  by  your  friendly  at 
tention  to  my  son.  I  am  sorry  that  "he  misunderstood  me  so 
far  as  to  request  an  advance  of  money  from  you  when  you 
could  not  have  funds  of  mine  in  your  hands.  I  gave  him 
what  I  hoped  would  be  sufficient  for  all  his  purposes  until  he 
should  enter  college,  but  told  him,  should  I  be  mistaken  re 
specting  the  amount  of  his  expenditures,  to  apply  to  you.  I 
did  not  suspect  that  his  application  would  be  made  till  the 
month  of  August. 

The  case  concerning  the  securities  of  the  cashier  of  the 
Bank  goes  to  the  Supreme  Court  &  will  probably  be  reversed. 
I  suppose  so,  because  I  conjecture  that  the  practice  of  banks 
has  not  conformed  to  my  construction  of  the  law.  The  Judge, 
however,  who  draws  the  opinion  must  have  more  ingenuity 
than  I  have,  if  he  draws  a  good  one. 

The  main  question  respects  the  validity  of  the  bond  on 
which  the  suit  was  instituted.  It  was  signed  at  different  times 
and  left  in  possession  of  the  cashier,  certainly,  I  suppose,  in 
the  expectation  that  he  would  forward  it  to  the  proper  place. 
The  plea  of  non  est  factum  was  put  in  among  other  pleas  & 
the  plaintiff  proved  the  signature  of  the  obligors  &  relied  on 
the  possession  of  the  bond  &  the  suit  on  it  as  evidence  to  be 
left  to  the  jury  of  its  delivery  &  acceptance. 

The  cause  was  argued  with  very  great  ability,  and  it  was 
contended  that  this  would  not  be  sufficient  in  any  case,  but  if 
in  general,  not  in  this  case. 

I  held  very  clearly  that  in  the  case  of  an  individual  obligee 


n8  THE  POLITICAL  AND  ECONOMIC 

the  evidence  would  authorize  the  jury  to  infer  delivery,  but 
not  in  the  case  of  the  Bank  of  the  United  States. 

The  incorporating  act  requires  that  before  the  cashier  shall 
be  permitted  to  enter  on  the  duties  of  his  office  he  shall  give 
bond  with  security  to  be  approved  by  the  board  of  Directors 
for  the  faithful  performance  of  its  duties.  I  had  no  doubt 
that  the  suit  upon  the  bond  was  evidence  of  its  acceptance  & 
consequently  of  its  being  approved,  if  that  fact  could  be  es 
tablished  by  parol  evidence,  but  I  was  of  opinion  that  it  could 
not  be  so  established.  The  board  of  Directors,  I  thought, 
could  only  speak  by  their  record.  They  cannot  speak  or  act 
as  individuals  speak  or  act.  They  speak  &  act  by  their  min 
utes.  Their  approbation  &  acceptance  of  the  bond  could  not 
be  expressed  otherwise  than  officially  on  their  minutes,  &  no 
other  evidence  than  the  minutes  could  establish  the  fact.  I 
therefore  did  not  permit  the  bond  to  go  to  the  jury. 

The  question  was  entirely  new,  &  I  was  at  first  rather  in 
favor  of  the  plaintiffs.  But  in  so  lax  a  manner  was  this  busi 
ness  conducted  as  to  show  very  clearly  that  the  cashier  was 
in  the  full  performance  of  his  duty  before  the  bond  was  exe 
cuted,  &  to  leave  it  very  doubtful  whether  the  breaches  as 
signed  were  not  committed  before  the  bond  passed  out  of  the 
possession  of  the  cashier.  There  was  reason  to  believe  that 
it  had  never  been  seen  by  the  Board  of  Directors  till  he  was 
removed  from  office,  if  then.  It  was  impossible  not  to  fore 
see  that  if  the  bond  went  to  the  jury  questions  would  im 
mediately  arise  on  the  time  of  its  commencing  obligation. 
The  date  could  not  be  the  guide,  because  it  was  not  executed 
at  its  date.  If  the  time  when  it  was  signed  by  the  last  obligor 
should  be  insisted  on,  it  was  obvious  that  it  had  not  then  been 
seen  or  approved  by  the  Directors,  nor  was  it  accepted  by 
them.  The  delivery,  therefore,  could  not  be  complete.  If 
the  time  when  it  came  to  the  possession  of  the  Directors  were 
to  be  taken,  it  probably  never  came  to  their  possession.  These 
difficulties  produced  a  close  examination  of  the  point,  the  re 
sult  of  which  was  a  perfect  conviction  that  the  minutes  of  the 
Board  could  alone  prove  the  acceptance  of  the  bond.  I  did 
not  doubt  that  the  board  of  Philadelphia  might  have  author 
ized  the  board  of  Richmond  to  accept  the  bond,  but  such  au 
thority  ought  to  appear  by  the  minutes  of  the  board  at  Phil 
adelphia. 


DOCTRINES  OF  JOHN  MARSHALL  119 

I  shall  bow  with  respect  to  the  judgement  of  reversal,  but 
till  it  is  given  I  shall  retain  the  opinion  I  have  expressed. 
With  great  &  affectionate  esteem,  I  am  your 

J.  MARSHALL. 

You  alarm  me  respecting  the  successor  of  our  much  la 
mented  friend.  I  too  had  heard  a  rumour  which  I  hoped  was 
impossible.  Our  Presidents,  I  fear,  will  never  again  seek  to 
make  our  department  respectable. 

The  case  mentioned  at  the  end  of  the  above  letter  is  that 
of  the  Bank  of  the  United  States  v.  Dandridge  (12  Wheaton's 
Reports).  As  he  anticipated  in  the  letter,  the  opinion  of 
Judge  Marshall  was  reversed.  He  gave  this  opinion  when 
he  was  sitting  as  Circuit  Judge.  The  opinion  of  the  majority 
of  the  Court  was  given  by  Judge  Story,  while  Chief  Justice 
Marshall  gave  a  much  longer  dissenting  opinion. 

The  much  lamented  friend  mentioned  was  Brockholst  Liv 
ingstone,  one  of  the  Associate  Justices  of  the  Supreme  Court. 
He  died  March  n,  1823,  and  was  succeeded  by  Smith  Thomp 
son. 

The  correspondence  mentioned  in  the  following  letter,  the 
publication  of  which  was  so  extremely  regretted,  was  the 
"  Correspondence  between  the  Hon.  John  Adams,  late  Presi 
dent  of  the  United  States,  and  the  late  Wm.  Cunningham, 
Esq.,  beginning  in  1803  and  ending  in  1812,"  published  in 
1823  by  E.  M.  Cunningham,  Esq. 

THE  HON'BLE  MR.  JUSTICE  STORY, 
Salem,  Massachusetts. 

RICHMOND,  Deer  Qth,  1823. 
MY  DEAR  SIR: 

I  had  the  pleasure  yesterday  of  receiving  your  letter  of  the 
24th  ultimo  &  congratulate  you  on  passing  through  your  cir 
cuit  in  such  good  health  &  spirits.  Our  brother  Washington 
was  so  unwell  as  to  be  under  the  necessity  of  adjourning  the 
court  at  Philadelphia  without  going  through  the  docket.  I 
am  still  engaged  at  this  place  in  a  sort  of  dilatory  way,  doing 
very  little,  and  still  having  something  to  do.  A  case  was  ar 
gued  yesterday  which  I  would  send  to  the  Supreme  Court  if 
I  could,  but  I  cannot.  The  Pilot,  an  American  vessel,  was 


120  THE  POLITICAL  AND  ECONOMIC 

captured  by  pirates  &  converted  into  a  piratical  cruiser.  She 
was  then  recaptured  by  one  of  our  squadron  under  Commo 
dore  Porter  after  a  sharp  action.  She  was  brought  into  Nor 
folk,  libelled  as  prize,  &  claimed  by  the  original  owner.  The 
attorney  for  the  captors  abandoned  the  claim  as  prize,  and 
asked  salvage.  This  claim  was  resisted  on  the  ground  that 
the  capture  was  not  within  the  act  of  1800,  because  that  ap 
plies  only  to  recaptures  from  an  enemy  of  the  United  States, 
not  to  recaptures  from  a  pirate.  It  was  insisted  too  that  the 
act  of  1819  does  not  give  salvage  for  a  recapture  made  by  a 
national  ship,  because  although  an  American  vessel  recap 
tured  by  a  merchantman  or  private  vessel  is  to  be  brought  in, 
yet  such  vessel  recaptured  by  a  national  ship  is  not  to  be 
brought  in.  As  there  is  no  salvage  given  by  statute,  the  claim, 
it  was  said,  must  rest  upon  general  law.  It  was  admitted  that 
according  to  that  law  salvage  is  due  for  a  vessel  recaptured  by 
a  private  ship,  but  not  for  a  vessel  recaptured  by  a  national 
ship,  because  the  nation  owes  protection  to  all  its  people,  and 
it  is  a  part  of  the  duty  of  the  national  force  to  afford  this 
protection.  In  the  present  case  it  was  one  of  the  objects  of 
the  expedition.  It  was  said  that  the  general  dicta  that  sal 
vage  is  due  for  recaptures  made  from  pirates  must  be  limited 
to  such  as  are  made  by  private  ships  or  by  the  public  ships 
of  some  other  nation  than  that  of  the  recaptured  vessel. 

The  counsel  for  the  recaptors  relied  chiefly  on  the  general 
principle  that  by  the  law  of  nations,  or  by  the  general  mari 
time  law,  salvage  is  due  for  all  vessels  recaptured  from  pi 
rates. 

The  District  Judge  gave  salvage,  &  the  owners  have  ap 
pealed.  I  do  not  know  that  the  question  has  ever  arisen  in 
any  of  the  courts  of  the  United  States.  Perhaps  your  in 
formation  may  be  more  extensive,  and  I  will  thank  you  to 
give  it  to  me.  If  the  case  has  not  been  decided  you  will 
greatly  oblige  me  by  your  sentiments  on  it,  as  I  know  that  you 
are  more  au  fait  on  these  questions  than  I  am.  The  sooner  I 
hear  from  you,  provided  you  are  satisfied  in  the  case,  the 
better. 

I  have  read  the  correspondence  to  which  you  refer  and  re 
gret  its  publication  extremely.  I  feel  great  respect  for  Mr. 
Adams,  and  shall  always  feel  it  whatever  he  may  do.  The 
extreme  bitterness  with  which  he  speaks  of  honourable  men 


DOCTRINES  OF  JOHN  MARSHALL  121 

who  were  once  his  friends  is  calculated  to  mortify  and  pain 
those  who  remain  attached  to  him.  A  comparison  of  the 
language  he  applies  to  gentlemen  of  high  character  in  Mass 
achusetts  with  that  which  in  the  early  part  of  the  corres 
pondence  he  applied  to  those  who  were  always  his  enemies 
and  gross  calumniators,  who  cannot  even  now  treat  him  with 
decency,  inspires  serious  reflections.  We  can  only  say,  non 
est  qualis  erat. 

I  think  I  can  guess,  although  not  born  north  of  the  Hudson, 
what  you  hint  at  respecting  the  Presidential  election;  but  I 
shall  be  as  careful  not  to  commit  my  guess  as  you  are  re 
specting  your  scheme. 

Farewell.  Providence,  I  hope,  will  continue  to  take  care  of 
us.  With  affectionate  esteem, 

I  am,  dear  Sir,  your  obedt 

J.  MARSHALL. 

The  portrait  mentioned  at  the  beginning  of  the  following 
letter  is  now  hanging  in  Memorial  Hall  in  the  dining-room 
of  Harvard  College,  at  Cambridge,  Mass.  This  portrait  was 
given  by  Judge  Story's  will  to  the  President  and  Fellows  of 
Harvard  College. 

Appleton's  "  Cyclopaedia  of  American  Biography  "  states 
(Vol.  II,  p.  757)  that  Horatio  Greenough  made  a  marble 
bust  of  Judge  Marshall ;  and  in  a  letter  to  his  brother  Henry, 
dated  February  28,  1828,  he  writes  :  "  I  had  this  morning  the 
first  sitting  from  Chief  Justice  Marshall.  Judge  Story  says 
that  anyone  would  recognize  my  sketch;  that  it  is  capital." 
See  "  Letters  of  Horatio  Greenough  to  his  brother  Henry 
Greenough,"  p.  31. 

THE  HON'BLE  MR.  JUSTICE  STORY, 
Salem,  Massachusetts. 

RICHMOND,  March  26,  1828. 
MY  DEAR  SIR  : 

I  beg  you  to  accept  my  portrait  for  which  I  sat  in  Washing 
ton  to  Mr.  Harding,  to  be  preserved  when  I  shall  sleep  with  my 
fathers,  as  a  testimonial  of  sincere  and  affectionate  friendship. 
The  remaining  hundred  dollars  you  will  be  so  good  as  to  pay 
to  Mr.  Harding  for  the  head  and  shoulders  I  have  bespoke  for 
myself.  I  shall  not  wish  the  portrait  designed  for  myself  to  be 


122  THE  POLITICAL  AND  ECONOMIC 

sent  to  Richmond  till  I  give  directions  for  it  to  be  accom 
panied  by  the  head  Mr.  Greenough  means  to  cast  for  me. 
You  will  very  much  oblige  me  by  letting  me  know  when  those 
castings  are  accomplished  what  is  the  price  at  which  he  sells 
them,  because  if  they  should  be  held  higher  than  I  think  my 
head  worth  I  may  probably  order  more  than  of  them.  I 
hope  Mrs.  Story  &  yourself  have  had  a  pleasant  journey  & 
have  found  your  little  family  in  perfect  health.  I  congratulate 
you  both  on  this  anticipated  happiness.  I  had  a  pleasant  sail 
through  a  smooth  sea  to  Norfolk  &  thence  to  Richmond.  I 
have  seen  scarcely  any  person  out  of  my  own  family  since 
my  return,  but,  if  I  may  credit  appearances,  there  is  rather 
a  more  stormy  and  disturbed  atmosphere  on  land  than  I  en 
countered  in  the  Bay.  The  spirit  of  party  is  understood  to  be 
more  bitter  than  I  could  have  supposed  possible.  I  am,  how 
ever,  on  the  wing  for  my  friends  in  the  upper  country,  where 
I  shall  find  near  and  dear  friends  occupied  more  with  their 
farms  than  with  party  politics. 

I  had  one  of  your  fish  dressed  yesterday,  and  found  it 
excellent. 

I  am,  dear  Sir,  with  real  regard  and  esteem, 

Your  obedt 

J.  MARSHALL. 

I  had  nearly  forgotten  to  say  that  I  received  to-day  under  cover 
from  Mr.  Webster  Mr.  McGruder's  letter  announcing  the  loss 
of  my  surtout.     I  thank  you  for  the  trouble  you  have  taken  as 
much  as  if  it  had  terminated  more  successfully. 
Once  more  farewell. 

Your 

J.  M. 

THE  HON'BLE  MR.  JUSTICE  STORY, 
Salem,  Massachusetts. 

RICHMOND,  May  ist,  1828. 
MY  DEAR  SIR  : 

Yesterday  on  my  return  from  a  visit  to  my  sons  in  our 
upper  country  I  had  the  pleasure  of  receiving  your  very  friendly 
letter  of  the  loth  of  April.  |  The  kind  partiality  you  have 
always  manifested  towards  me  has  been  ever  most  grateful  to 
my  heart.  No  gratification  is  more  pure  or  more  exalted  than 
the  regard  of  those  we  esteem^  I  received  at  the  same  time  a 


DOCTRINES  OF  JOHN  MARSHALL  123 

letter  from  Mr  Harding  dated  the  6th  of  April  informing  that 
he  should  leave  Washington  within  a  fortnight  from  that  day, 
and  requesting  me  to  direct  the  disposition  he  should  make  of 
the  portrait  I  had  requested  him  to  draw  for  my  use.  As  he 
had  left  Washington  ten  days  before  his  letter  reached  me  I 
could  give  no  directions  on  the  subject  and  have  not  written  to 
him.  I  presume  he  is  in  Boston.  Will  you  have  the  goodnes 
to  let  him  know  that  his  letter  was  not  answered  because  it 
was  not  received,  &  that  I  will  thank  him  if  he  has  left  the 
portrait  in  Washington  to  let  me  know  with  whom  it  remains, 
and  if  it  is  with  him  to  deliver  it  to  you?  I  shall  rely  on  you 
to  give  it  house  room  till  the  representation  of  the  Court  in 
costume  is  prepared  when  I  must  make  arrangements  to  have 
both,  together  with  the  head  in  plaister,  conveyed  to  this  place. 
I  believe  I  said  something  to  you  on  this  subject  in  my  last 
letter. 

I  was  a  good  deal  provoked  at  the  publication  in  the  Mary- 
lander,  not  because  I  have  any  objection  to  its  being  known 
that  my  private  judgement  is  in  favor  of  the  re-election  of 
Mr  Adams,  but  because  I  have  great  objections  to  being  repre 
sented  in  the  character  of  a  furious  partisan.  Intemperate 
language  does  not  become  my  age  or  office,  and  is  foreign  from 
my  disposition  and  habits.  I  was  therefore  not  a  little  vexed 
at  a  publication  which  represented  me  as  using  language  which 
could  be  uttered  only  by  an  angry  party  man.  As  I  knew  I  had 
never  conversed  on  the  subject  except  confidentially  with 
friends  I  was  persuaded  that  the  communication  to  the  printer 
could  not  have  been  direct,  and  that  it  had  been  a  good  deal 
metamorphosed  in  its  journey  to  him.  On  my  late  visit  to  the 
upper  country  I  was  informed  that  this  was  the  fact.  One 
of  my  nephews  for  whom  I  feel  great  regard  and  who  was 
on  the  Adams  convention  was  asked  in  Baltimore  by  a  gentle 
man  of  that  place  if  he  knew  my  opinion  respecting  the  candi 
dates  for  the  Presidency.  On  his  answering  that  I  seldom 
mentioned  the  subject,  but  that  he  had  heard  me  say  that 
though  I  had  not  voted  for  upwards  of  twenty  years  I  should 
probably  vote  at  the  ensuing  election,  the  gentleman  observed 
that  he  supposed  I  should  consider  the  election  of  Jackson  as  a 
virtual  dissolution  of  the  government.  The  observation  was 
received  with  a  smile  &  some  light  expression  of  its  extrava 
gance,  and  upon  the  strength  of  this  circumstance  a  communi- 


i24  THE  POLITICAL  AND  ECONOMIC 

cation  was  made  which  produced  the  publication  in  the  Mary- 
lander.  On  seeing  it  my  nephew  wrote  to  a  friend  in  Balti 
more  requesting  him  to  enquire  whether  it  was  made  on  the 
strength  of  his  communication,  and  if  it  was,  enclosing  a  pub 
lication  denying  that  he  had  ever  authorized  it  or  had  ever 
heard  me  use  such  language  as  had  been  ascribed  to  me.  The 
editor  of  the  Marylander  was  in  a  situation  when  the  letter  was 
received  to  prevent  the  enquiry  which  was  directed,  and  his 
death  has  put  an  end  to  that  part  of  the  business.  My  nephew 
stated  the  affair  to  me  while  in  the  mountain  country,  and  was 
too  much  chagrined  for  me  to  add  to  his  mortification  by 
blaming  him.  I  must  bear  that  newspaper  scurrility  which  I 
had  hoped  to  escape,  and  which  is  generally  reserved  for  more 
important  personages  than  myself.  It  is  some  consolation 
that  it  does  not  wound  me  very  deeply. 

I  am  glad  to  hear  that  Mrs  Story  and  yourself  had  a  pros 
perous  journey  homeward.  The  epidemic  you  mention  has 
prevailed  extensively  in  Richmond,  and  has  in  some  instances 
been  fatal.  I  am  happy  to  hear  that  it  has  not  been  so  in 
your  family. 

You  will  soon  be  on  your  spring  circuit,  if  (not)  already 
engaged  on  it.  I  wish  you  a  pleasant  [torn],  and  am,  with 
affection  and  esteem, 

Your 

J.  MARSHALL. 

THE  HON'BLE  MR.  JUSTICE  STORY, 
Salem,  Massachusetts. 

RICHMOND,  Oct.  29th,  1828. 
MY  DEAR  SIR  : 

I  have  just  finished  the  perusal  of  your  centennial  discourse 
on  the  first  settlement  of  Salem,  and  while  fresh  under  its 
influence  take  up  my  pen  to  thank  you  for  the  pleasure  it  has 
given  me.  You  have  drawn  a  vivid  picture,  and,  I  believe,  a 
faithful  likeness  of  those  extraordinary  men  who  first  peopled 
New  England,  and  my  feelings  as  well  as  my  judgement  have 
accompanied  you  in  your  rapid  sketch  of  the  character  and 
conduct  of  their  descendants.  I  wish  the  admonitory  part  may 
have  its  full  effect  on  others  as  well  as  on  those  to  whom  it  was 
particularly  addressed.  Some  of  our  southern  friends  might 
benefit  from  the  lesson  it  inculcates. 


DOCTRINES  OF  JOHN  MARSHALL  125 

But  I  have  been  still  more  touched  with  your  notice  of  the 
red  man  than  of  the  white.  The  conduct  of  our  forefathers 
in  expelling  the  original  occupants  of  the  soil  grew  out  of  so 
many  mixed  motives  that  any  censure  which  philanthropy  may 
bestow  upon  it  ought  to  be  qualified.  The  Indians  were  a 
fierce  and  dangerous  enemy  whose  love  of  war  made  them 
sometimes  the  aggressors,  whose  numbers  and  habits  made 
them  formidable,  and  whose  cruel  system  of  warfare  seemed 
to  justify  every  endeavour  to  remove  them  to  a  distance  from 
civilized  settlements.  It  was  not  until  after  the  adoption  of 
our  present  government  that  respect  for  our  own  safety  per 
mitted  us  to  give  full  indulgence  to  those  principles  of  humanity 
and  justice  which  ought  always  to  govern  our  conduct  towards 
the  aborigines  when  this  course  can  be  pursued  without  ex 
posing  ourselves  to  the  most  afflicting  calamities.  That  time, 
however,  is  unquestionably  arrived,  and  every  oppression  now 
exercised  on  a  helpless  people  depending  on  our  magnanimity 
and  justice  for  the  preservation  of  their  existence  impresses 
a  deep  stain  on  the  American  character.  I  often  think  with 
indignation  on  our  disreputable  conduct  (as  I  think)  in  the 
affair  of  the  Creeks  of  Georgia;  and  I  look  with  some  alarm 
on  the  course  now  pursuing  in  the  Northwest.  Your  observa 
tions  on  this  subject  are  eloquent  and  in  perfect  accordance 
with  my  feelings.  But  I  turn  with  most  pleasure  to  that  fine 
passage  respecting  the  Lady  Arabella  Johnson.  I  almost  envy 
the  occasion  her  sufferings  and  premature  death  have  fur 
nished  for  bestowing  that  well  merited  eulogy  on  a  sex  which 
so  far  surpasses  ours  in  all  the  amiable  and  attractive  virtues  of 
the  heart, —  in  all  those  qualities  which  make  up  the  sum  of 
human  happiness  and  transform  the  domestic  fireside  into  an 
elysium.  I  read  the  passage  to  my  wife,  who  expressed  such 
animated  approbation  of  it  as  almost  to  excite  fears  for  that 
exclusive  admiration  which  husbands  claim  as  their  peculiar 
privilege.  Present  my  compliments  to  Mrs  Story  and  say  for 
me  that  a  lady  receives  the  highest  compliment  her  husband 
can  pay  her  when  he  expresses  an  exalted  opinion  of  the  sex, 
because  the  world  will  believe  that  it  is  formed  on  the  model 
he  sees  at  home. 

I  have  read  with  much  interest  the  character  you  have  drawn 
of  our  deceased  friend  and  brother,  the  lamented  Judge 
Trimble.  Most  richly  did  he  merit  all  you  have  said  of  him. 


126  THE  POLITICAL  AND  ECONOMIC 

His  place,  I  fear,  cannot  be  completely  supplied.  I  was  de 
sirous  of  having  the  character  republished  in  our  papers,  but 
was  restrained  by  the  flattering  introduction  of  my  name.  My 
modesty  was  alarmed  by  the  apprehension  that  the  request  for 
its  publication  might  be  ascribed  as  much  to  vanity  as  to  my 
deep  feeling  for  departed  worth. 

Most  cordially  do  I  congratulate  you  on  the  appointment  of 
our  friend  Hopkinson. 

With  affectionate  esteem,  I  am,  dear  Sir, 

Your 

J.  MARSHALL. 

Robert  Trimble,  of  Kentucky,  who  is  mentioned  at  the  end 
of  the  above  letter,  was  appointed  one  of  the  Justices  of  the 
Supreme  Court  May  9,  1826,  and  died  August  25,  1828. 
Judge  Story's  sketch  of  his  character  was  printed  in  the  Co 
lumbian  Sentinel  of  September  17.  See  Story's  "  Life  and 
Letters  of  Joseph  Story,"  Vol.  I,  pp.  541-543. 

Joseph  Hopkinson,  also  mentioned  at  the  end  of  the  letter, 
was  appointed  in  1828  by  President  J.  Q.  Adams,  Judge  of 
the  District  Court  for  the  Eastern  District  of  Pennsylvania, 
and  held  the  office  until  his  death  in  January,  1842. 

THE  HON'BLE  MR.  JUSTICE  STORY, 
Salem,  Massachusetts. 

RICHMOND,  June  nth,  1829. 
MY  DEAR  SIR  : 

I  had  the  pleasure  some  time  past  of  receiving  your  letter 
inclosing  a  copy  of  that  which  transmitted  a  copy  of  his  com 
mission  to  our  friend  Judge  Hopkinson.  I  am  the  more  grat 
ified  by  the  flattering  terms  of  the  letter  when  I  recollect  by 
whom  the  copy  was  taken.  I  am  sure  you  told  her  in  my  name 
by  anticipation  how  much  I  was  delighted  by  such  a  letter 
copied  by  such  a  hand. 

I  am  almost  ashamed  of  my  weakness  and  irresolution  when 
I  tell  you  that  I  am  a  member  of  our  convention.  I  was  in 
earnest  when  I  told  you  that  I  would  not  come  into  that  body, 
and  really  believed  that  I  should  adhere  to  that  determina 
tion  ;  but  I  have  acted  like  a  girl  addressed  by  a  gentleman  she 
does  not  positively  dislike,  but  is  unwilling  to  marry.  She  is 
sure  to  yield  to  the  advice  and  persuasion  of  her  friends. 


DOCTRINES  OF  JOHN  MARSHALL  127 

I  wrote  from  Washington  signifying  my  wish  not  to  be 
brought  forward,  and  desiring  that  the  attention  of  the  dis 
trict  might  be  directed  to  some  other  person,  but  the  letter  was 
mentioned  to  a  very  few,  and  those  few  advised  that  it  should 
not  be  communicated,  but  that  I  should  remain  free  to  act 
on  my  return  as  my  judgement  might  direct. 

The  committee  appointed  at  this  place  to  nominate  had  writ 
ten  to  me  at  Washington,  but  the  letter  reached  that  place  the 
day  of  my  departure  or  the  day  afterwards,  and  of  course  was 
not  received.  A  duplicate  was  transmitted  to  me  a  few  days 
after  my  arrival  in  Richmond,  which  I  answered  immediately, 
acknowledging  my  grateful  sense  of  the  favorable  opinion 
which  had  led  to  my  nomination,  but  declaring  my  unwilling 
ness  to  become  a  member  of  the  convention,  and  declining  the 
honour  intended  me.  The  committee  would  not  act  upon  this 
letter;  but  in  the  meantime  it  was  rumoured  in  the  town  that 
I  declined  being  voted  for,  in  consequence  of  which  I  was 
pressed  so  earnestly  on  the  subject  by  friends  whose  opinions 
I  greatly  value  that  my  resolution  began  to  stagger.  It  was 
said  that  whether  I  took  any  part  in  the  debate  or  not,  my 
services  were  counted  on  as  of  real  importance.  The  com 
mittee  addressed  a  second  letter  to  me  containing  assurances 
of  their  anxious  desire  that  I  would  reconsider  the  resolution 
I  had  formed,  and  assent  to  what  they  were  certain  was  the 
general  wish  of  the  district.  As  is  usual  I  yielded  and  gave 
a  reluctant  consent  to  serve  if  I  should  be  elected.  Such  is 
the  history  of  the  business.  I  assure  you  I  regret  being  a 
member,  and  could  I  have  obeyed  the  dictates  of  my  own  judge 
ment  I  should  not  have  been  one.  I  am  conscious  that  I  can 
not  perform  a  part  I  should  wish  to  take  in  a  popular  assembly ; 
but  I  am  like  Moliere's  Medecin  malgre  lui. 

The  body  will  contain  a  great  deal  of  eloquence  as  well  as 
talent,  and  yet  will  do,  I  fear,  much  harm  with  some  good. 
Our  freehold  suffrage  is,  I  believe,  gone  past  redemption.  It 
is  impossible  to  resist  the  influence,  I  had  almost  said  con 
tagion  of  universal  example. 

With  great  esteem  and  affection, 

I  am,  my  dear  Sir,  your  obedt 

J.  MARSHALL. 

The  convention  referred  to  in  this  letter  was  the  convention 
for  revising  the  Constitution  of  Virginia. 


128  THE  POLITICAL  AND  ECONOMIC 

THE  HON'BLE  MR.  JUSTICE  STORY, 
Salem,  Massachusetts. 

RICHMOND,  July  3d,  1829. 
MY  DEAR  SIR  : 

Your  favor  of  the  23d  of  June  accompanying  Mr.  Brazer's 
discourse  at  the  interment  of  Doctor  Holyoke,  and  your  very 
interesting  address  to  the  bar  of  Suffolk  at  their  anniversary 
on  the  4th  of  Septr,  1821,  reached  me  a  few  days  past.  It  is 
impossible  to  read  the  first  without  strong  impressions  of  the 
worth  both  of  Doctor  Holyoke  and  Mr.  Brazer. 

Your  address  was  of  course  read  with  pleasure  and  atten 
tion.  It  takes,  as  is  your  custom,  a  very  comprehensive  view 
of  the  subject,  of  the  law  and  of  the  distinguished  persons 
who  have  adorned  it.  It  presents  strong  incentives  to  exer 
tion. 

Directly  after  writing  my  last  letter  I  saw  your  appointment 
to  the  Dane  Professorship,  and  anticipated  your  acceptance  of 
it.  The  situation  imposes  duties  which  I  am  sure  you  will  dis 
charge  in  a  manner  useful  to  others  and  conducive  to  your  own 
fame.  I  did  not,  however,  anticipate  that  the  labour  would 
immediately  press  so  heavily  on  you  as  your  letter  indicates. 
Four  octavo  volumes  in  five  years  is  a  heavy  requisition  on  a 
gentleman  whose  time  is  occupied  by  duties  which  cannot  be 
neglected.  I  am  confident  that  no  person  is  more  equal  to  the 
task  than  yourself,  but  I  cannot  help  thinking  that  the  publica 
tion  may  be  postponed  to  advantage.  I  presume  the  work  will 
be  in  the  form  of  lectures,  and  I  suspect  you  will  find  it  ad 
visable  to  postpone  the  publication  of  them  till  they  have  been 
revised  for  a  second  course.  Precipitation  ought  carefully  to 
be  avoided.  This  is  a  subject  on  which  I  am  not  without  ex 
perience. 

I  hope  your  attention  has  been  turned  to  the  two  great  cases 
we  have  under  advisement.  I  wish  you  would  place  your 
thoughts  upon  paper.  I  am  the  more  anxious  about  this  as  I 
have  myself  not  considered  them,  and  fear  that  I  shall  be  pre 
vented  from  bestowing  on  them  the  attention  they  ought  to 
receive.  Mr.  Thompson,  I  presume,  will  look  thoroughly  into 
that  from  New  York  and  be  prepared  in  it,  but  if  the  majority 
of  the  Court  should  not  concur  with  him  it  will  be  necessary 
that  preparation  should  be  made  for  such  an  event. 

We  shall  have  a  good  deal  of  division  and  a  good  deal  of 


DOCTRINES  OF  JOHN  MARSHALL  129 

heat,  I  fear,  in  our  convention.  The  freehold  principle  will,  I 
believe,  be  lost.  It  will,  however  be  supported  with  zeal.  If 
that  zeal  could  be  successful  I  should  not  regret  it.  If  we  find 
that  a  decided  majority  is  against  retaining  it  I  should  prefer 
making  a  compromise  by  which  a  substantial  property  qualifica 
tion  may  be  preserved  in  exchange  for  it.  I  fear  the  excessive 
[torn]  cident  to  victory  after  a  hard  fought  battle  continued 
to  the  last  extremity  may  lead  to  universal  suffrage  or  some 
thing  very  near  it.  What  is  the  prop[erty]  qualification  for 
your  Senate?  How  are  your  Senators  apportioned  on  the 
State  ?  And  how  does  your  system  work  ? 

The  question  whether  white  population  alone,  or  white  popu 
lation  compounded  with  taxation,  shall  form  the  basis  of  repre 
sentation  will  excite  perhaps  more  interest  than  even  the  free 
hold  suffrage.  I  wish  we  were  well  through  the  difficulty. 

Farewell.     I  am,  my  dear  Sir,  affectionately  &  truely 

Your 

J.  MARSHALL. 

THE  HON'BLE  MR.  JUSTICE  STORY, 
Cambridge,  Massachusetts. 

RICHMOND,  Septr  3Oth,  1829. 
MY  DEAR  SIR  : 

I  have  read  with  great  pleasure  your  discourse  pronounced 
as  Dane  Professor  of  Law  in  Harvard  University.  It  is  in 
your  best  style  of  composition. 

You  have  marked  out  for  yourself  a  course  of  labour  which 
is  sufficiently  arduous ;  but  I  believe  you  love  to  struggle  with 
difficulty,  and  you  have  generally  the  good  fortune  or  merit  to 
overcome  it.  At  seventy-four  you  will  find  indolence  creeping 
over  you.  But  we  will  not  anticipate  the  evil. 

You  have  not  spared  the  students  of  law  more  than  the 
Professor.  You  have  prescribed  for  them  a  most  appalling 
course.  Our  southern  youths  would  stumble  at  the  threshold, 
and  think  such  a  task  too  formidable  for  even  a  commencement. 
You  Yankees  have  more  perseverance,  or  think  more  justly  on 
the  proposition  that  he  who  attempts  much  may  accomplish 
something  valuable,  should  his  success  not  be  complete. 

I  hope  I  shall  live  to  read  your  lectures.  They  will  form  an 
exception  to  the  plan  of  life  I  had  formed  for  myself  to  be 


130  THE  POLITICAL  AND  ECONOMIC 

adopted  after  my  retirement  from  office,  that  is  to  read  noth 
ing  but  novels  and  poetry. 

Our  convention  approaches.  I  still  feel  vain  regrets  at 
being  a  member.  The  chief  though  not  the  only  cause  of 
these  regrets  is  that  non  sum  qualis  eram.  I  can  no  longer 
debate.  Yet  I  cannot  apply  my  mind  to  any  thing  else. 

Farewell, —  with  affectionate  esteem  I  remain  your 

J.  MARSHALL. 

THE  HON'BLE  MR.  JUSTICE  STORY, 
Cambridge,  Massachusetts. 

RICHMOND,  October  i5th,  1830. 
MY  DEAR  SIR  : 

Ascribe  my  delay  in  thanking  you  for  the  sermon  drawing 
the  character  of  your  late  Chief  Justice,  and  for  the  excellent 
addendum  you  have  made  to  it,  to  the  indolence  and  negli 
gence  of  age,  or  to  any  cause  rather  than  to  indifference  to 
any  mark  of  your  kind  recollection.  I  have  read  both  with 
attention  and  with  real  gratification.  I  had  formed  a  high 
opinion  of  the  late  Chief  Justice  Parker  from  what  I  had  heard 
of  him,  especially  from  yourself,  but  that  opinion  was  certainly 
raised  by  the  more  minute  detail  of  his  qualities  and  by  the 
abridged  biography  contained  in  the  work  for  which  I  am 
thanking  you.  My  regret  for  the  loss  of  this  estimable  gentle 
man  was  much  enhanced  by  the  fear  that  Massachusetts  might 
be  able  to  supply  his  place  by  seducing  from  the  Federal  bench 
a  gentleman  whose  loss  would  be  irreparable.  I  felicitate  my 
self  and  my  country  on  the  disappointment  of  this  apprehen 
sion. 

While  I  am  acknowledging  favors  I  thank  you  also  for  a 
box  of  fish  received  the  other  day.  I  have  not  yet  tasted  them, 
but  have  no  doubt  of  their  excellence,  and  shall  not  be  long  in 
putting  it  to  the  test. 

I  find  our  brother  McClean  could  not  acquiesce  in  the  de 
cision  of  the  Court  in  the  Missouri  case.  I  am  sorry  for  this, 
and  am  sorry  too  to  observe  his  sentiments  on  the  25th  sec. 
of  the  judicial  act.  I  have  read  in  the  last  volume  of  Mr 
Peters  the  three  dissenting  opinions  delivered  in  that  case,  and 
think  it  requires  no  prophet  to  predict  that  the  25th  section  is 
to  be  repealed,  or  to  use  a  more  fashionable  phrase,  to  be  nulli 
fied  by  the  Supreme  Court  of  the  United  States.  I  hope  the 


DOCTRINES  OF  JOHN  MARSHALL          131 

case  in  which  this  is  to  be  accomplished  will  not  occur  during 
my  time,  but  accomplished  it  will  be  at  no  very  distant  period. 

I  am  mortified  at  the  number  of  causes  left  undecided  at  the 
last  term.  I  am  still  more  mortified  at  the  circumstance  that  I 
am  unable  to  prepare  opinions  in  them.  The  cases  of  Soulard 
and  of  Smith  I  suppose  must  wait  for  additional  information 
or  for  the  certainty  that  none  is  to  be  obtained,  but  I  had  hoped 
to  prepare  something  in  the  lottery  case.  I  am  chagrined  at 
discovering  that  I  have  left  the  statement  of  the  case  behind 
me.  It  is  also  cause  of  real  surprise  as  well  as  chagrin  to  find 
that  the  case  of  Cathcart  and  Robertson  was  not  decided.  I 
really  thought  the  Court  had  made  up  an  opinion  on  it. 

I  have  read  with  peculiar  pleasure  the  letter  of  Mr.  Madison 
to  the  editor  of  the  North  American  Review.  He  is  himself 
again.  He  avows  the  opinions  of  his  best  days,  and  must  be 
pardoned  for  his  oblique  insinuations  that  some  of  the  opinions 
of  our  Court  are  not  approved.  Contrast  this  delicate  hint 
with  the  language  Mr.  Jefferson  has  applied  to  us.  He  is  at 
tacked  with  some  bitterness  by  our  Enquirer,  who  has  arrayed 
his  report  of  1799  against  his  letter.  I  never  thought  that 
report  could  be  completely  defended ;  but  Mr.  Madison  has 
placed  it  upon  its  best  ground,  that  the  language  is  incautious, 
but  is  intended  to  be  confined  to  a  mere  declaration  of  opinion, 
or  is  intended  to  refer  to  that  ultimate  right  which  all  admit, 
to  resist  despotism,  a  right  not  exercised  under  a  constitution, 
but  in  opposition  to  it. 

Farewell, —  with  the  best  wishes  for  your  happiness, 
I  am  yours  affectionately. 

J.  MARSHALL. 

The  sermon  mentioned  in  the  above  letter  is  a  sermon  on 
the  decease  of  Chief  Justice  Isaac  Parker  by  John  Gorman 
Palfrey.  Appended  to  it  is  "  a  sketch  of  Judge  Parker's 
character  as  an  advocate  and  lawyer,"  "  by  an  eminent  Judge 
of  the  Supreme  Court  of  the  United  States." 

The  "  brother  McLean  "  mentioned  was  John  McLean  who 
became  an  Associate  Justice  of  the  Supreme  Court  in  January, 
1830.  The  case  here  referred  to  was  Craig  v.  Missouri  (4 
Peters,  410),  in  which  for  the  first  time  the  Court  considered 
what  was  meant  by  the  prohibition  on  the  States  to  emit  bills 
of  credit.  The  subject  was  closely  connected  with  the  validity 


132  THE  POLITICAL  AND  ECONOMIC 

of  the  issues  of  the  State  banks.     The  views  of  Judge  McLean 
finally  prevailed. 

The  letter  written  by  Mr.  Madison  to  the  Editor  of  the  North 
American  Review,  is  printed  in  the  North  American  Review 
for  October,  1830,  at  the  end  of  Mr.  Everett's  article  on  the 
debate  in  the  Senate  of  the  United  States  on  Mr.  Foot's  reso 
lution. 

In  the  following  letter  mention  is  made  of  "  boarding  the 
Judges."  During  this  period  the  Justices  of  the  Supreme 
Court  were  not  accompanied  by  their  families  when  they  went 
to  Washington,  but  had  rooms  together  in  some  private  board 
ing-house,  presumably  for  the  greater  convenience  it  afforded 
for  consultation  and  discussion  of  their  problems. 

The  "  copy  of  Algernon  Sydney  "  refers  most  likely  to  "  The 
Letters  of  Algernon  Sydney,  in  defense  of  Civil  Liberty  and 
against  the  Encroachments  of  Military  Despotism,"  which  were 
written  by  Benjamin  Watkins  Leigh,  and  were  first  printed  in 
the  Richmond  Enquirer  in  1818-1819.  Afterward  they  were 
published  in  1830,  in  an  octavo  pamphlet. 

THE  HON'BLE  MR.  JUSTICE  STORY, 
Cambridge  near  Boston. 

RICHMOND,  May  3d,  1831. 
MY  DEAR  SIR  : 

By  the  schooner  King  I  send  you  a  barrel  containing  a  few 
hams  which  are  to  be  deposited  for  you  with  Fisher  and  Power 
of  Boston.  As  the  address  is  marked  on  the  cask  I  hope  they 
will  reach  you  in  safety,  and  will  be  found  reasonably  well 
flavoured. 

What  do  the  wise  men  in  the  East  say  to  the  tabula  rosa 
which  is  made  in  the  cabinet  ?  Our  quid  nuncs  were  astonished 
at  first,  but  soon  discovered  that  the  really  voluntary  resigna 
tions  were  proofs  of  unparallelled  magnanimity  and  patriotism, 
and  that  those  which  were  compulsory  were  quite  comme  il  faut. 
This  is  not  only  as  it  should  be,  but  as  it  always  will  be. 

I  am  apprehensive  that  the  revolutionary  spirit  which  dis 
played  itself  in  our  circle  will,  like  most  other  revolutions,  work 
inconvenience  and  mischief  in  its  progress.  I  believe  Mr 
Brown  does  not  count  on  boarding  the  Judges  next  winter ;  and 
if  any  other  arrangement  is  made  'tis  entirely  unknown  to  me. 


DOCTRINES  OF  JOHN  MARSHALL          133 

We  have  like  most  other  unquiet  men,  disconted  with  the  things 
that  are,  discarded  accommodations  which  are  reasonably  con 
venient  without  providing  a  substitute.  We  pull  down  without 
enquiring  how  we  are  to  build  up.  The  matter  rests  I  under 
stand  with  our  younger  brother,  and  he  has  probably  committed 
it  to  some  other  person.  If  he  had  made  an  arrangement  we 
should  I  presume,  have  heard  something  about  it.  I  think  this 
is  a  matter  of  some  importance,  for  if  the  Judges  scatter  ad 
libitum  the  docket,  I  fear,  will  remain  quite  compact,  losing 
very  few  of  its  causes;  and  the  few  it  may  lose  will  probably 
be  carried  off  by  seriatim  opinions.  Old  men,  however,  are 
timid,  and  I  hope  my  fears  may  be  unfounded. 

I  sent  you  some  time  past  a  copy  of  Algernon  Sydney.  It  is 
rather  antediluvian,  but  you  expressed  a  wish  to  see  it.  The 
writer  is  among  our  ablest  men.  Most  of  his  friends  have  been 
classed  among  the  Jacksonians,  but  I  think  their  hostility  to  Mr. 
Adams  rather  than  their  affection  for  General  Jackson  has  ar 
ranged  them  under  his  banners. 

The  world  has  been  so  convulsed  by  peace  that  I  suspect  it 
must  have  war  in  order  to  be  made  quiet.  Materials  in 
abundance  have  been  prepared  for  a  general  conflagration,  and 
unless  the  mass  of  debts  operates  as  an  extinguisher  I  perceive 
nothing  which  can  prevent  the  spread  of  the  flame.  I  am  quite 
in  amaze  at  the  reform  in  Great  Britain,  and  can  come  to  only 
one  conclusion,  which  is  that  I  know  nothing  about  it,  and  can 
form  no  opinion  at  all  satisfactory  even  to  myself.  The  great 
teacher,  experience,  can  alone  inform  us  what  is  best  for  our 
selves  and  for  the  world. 

I  presume  you  are  engaged  on  your  new  circuit.  I  set  out 
the  last  of  this  week. 

Farewell,  with  every  wish  for  your  happiness,  I  am  yours 
truely. 

J.  MARSHALL. 

THE  HON'BLE  MR.  JUSTICE  STORY, 
Cambridge,  Massachusetts. 

RICHMOND,  June  26th,  1831. 
MY  DEAR  SIR  : 

I  have  received  your  two  letters  of  the  25th  &  3ist  of  May 
and  have  adopted  your  opinion  respecting  the  admiralty  juris 
diction,  though  in  doing  so  I  have  reversed  the  decree  of  my 


134  THE  POLITICAL  AND  ECONOMIC 

brother  Barbour.  I  felt  some  doubt  whether  General  Smith 
was  not  shaken  by  the  case  of  Ramsay  v.  Allyne,  in  which  the 
court  supposed  that  the  note  certainly  ousted  the  admiralty  of 
its  jurisdiction,  without  deciding  whether  independent  of  the 
note  jurisdiction  would  have  existed.  I  think  there  is  a  good 
deal  of  force  in  the  argument  of  Wirt  and  Meredith  that  the 
original  cause  of  action  did  not  merge  in  the  note.  How 
ever,  I  have  maintained  the  jurisdiction. 

I  am  greatly  perplexed  about  our  board  for  next  winter. 
You  know  what  passed  while  you  were  with  us,  and  how  much 
discontent  was  expressed  at  all  previous  arrangements.  I  was 
unwilling  to  say  any  thing  for  two  reasons.  Being  at  any  rate 
a  bird  of  passage,  whose  continuance  with  you  cannot  be  long, 
I  did  not  chuse  to  permit  my  convenience  or  my  wishes  to 
weigh  a  feather  in  the  permanent  arrangements  of  my  brethren. 
But  in  addition,  I  felt  serious  doubts,  although  I  did  not  men 
tion  them,  whether  I  should  be  with  you  at  the  next  term. 
What  I  am  about  to  say  is,  of  course,  in  perfect  confidence 
which  I  would  not  breathe  to  any  other  person  whatever.  I 
had  unaccountably  calculated  on  the  election  of  P — t  taking 
place  next  fall,  and  had  determined  to  make  my  continuance 
in  office  another  year  dependent  on  that  event.  You  know 
how  much  importance  I  attach  to  the  character  of  the  person 
who  is  to  succeed  me,  and  calculate  the  influence  which  proba 
bilities  on  that  subject  would  have  on  my  continuance  in  office. 
This,  however,  is  a  matter  of  great  delicacy  on  which  I  cannot 
and  do  not  speak.  My  erroneous  calculation  of  the  time  of 
election  was  corrected  as  soon  as  the  pressure  of  official  duty 
was  removed  from  my  mind,  and  I  had  nearly  decided  on  my 
course,  but  recent  events  produce  such  real  uncertainty  respect 
ing  the  future  as  to  create  doubts  whether  I  ought  not  to  await 
the  same  chances  in  the  fall  of  32  which  I  had  intended  to  await 
in  the  fall  of  31.  This  obliges  me  to  look  forward  to  our  quar 
ters  for  the  next  winter.  This  uncertainty  as  to  my  being  with 
you  which  had  prevented  my  taking  any  part  in  our  previous 
consultations  on  this  subject,  if  consultations  they  may  be 
called,  prevented  my  saying  anything  on  the  last  day.  It 
seemed  then  to  be  conclusively  determined  that  we  did  not 
remain  with  Brown,  and  I  understood  that  Judge  Baldwin 
would  provide  lodgings.  He  said  something  of  relying  on  his 
sister  to  select  them,  to  which  I  was  perfectly  agreed.  He  was 


DOCTRINES  OF  JOHN  MARSHALL  135 

of  course  to  communicate  anything  which  might  be  done.  Not 
having  heard  a  syllable  from  him  I  conclude  nothing  has  been 
done.  We  cannot,  however,  do  anything  for  ourselves  till  we 
know  that  he  does  nothing  for  us.  In  this  state  of  uncertainty 
I  have  thought  of  writing  to  him  when  he  comes  to  Philadelphia 
in  the  fall,  and  if  he  has  made  no  arrangement  to  provide  for 
ourselves.  You,  Judge  Thompson,  Judge  Duval,  and  myself 
may,  I  hope,  continue  to  mess  together.  Brother  Duval  must 
be  with  us  or  he  will  be  unable  to  attend  consultations.  I  have 
supposed  you  may  mention  this  subject  to  our  brother  Thomp 
son,  and  if  he  concurs  in  it  write  to  brother  Duval  to  engage  the 
old  rooms  for  us  at  Brown's  or  to  locate  us  at  some  other  place 
in  the  neighborhood.  This,  however,  must  depend  on  the  intel 
ligence  to  be  obtained  from  Judge  Baldwin. 

I  hear  with  feelings  of  deepest  sympathy  the  family  afflic-  **% 
tion  you  have  sustained,  and  participate  sincerely  in  the  grief 
which  both  Mrs.  Story  and  yourself  must  feel.  There  are 
wounds  into  which  time,  and  time  alone,  can  pour  its  healing 
balm.  Consolation  is  vain.  I  thank  you  for  the  verses  which 
the  melancholy  occasion  has  produced.  They  are  replete  with 
the  deep  parental  feeling  it  was  calculated  to  call  forth. 

You  ask  me  if  Mrs.  Marshall  and  myself  have  ever  lost  a  / 
child.  We  have  lost  four,  three  of  them  bidding  fairer  for 
health  and  life  than  any  that  have  survived  them.  One,  a  , 
daughter  about  six  or  seven,  was  brought  fresh  to  our  minds 
by  what  you  say  of  yours.  She  was  one  of  the  most  fasci 
nating  children  I  ever  saw.  She  was  followed  within  a  fort 
night  by  a  brother  whose  death  was  attended  by  a  circumstance 
we  can  never  forget.  When  the  child  was  supposed  to  be  dying 
I  tore  the  distracted  mother  from  the  bedside.  We  soon  after 
wards  heard  a  voice  in  the  room  which  we  considered  as  indi 
cating  the  death  of  the  infant.  We  believed  him  to  be  dead. 
[I  went]  into  the  room  and  found  him  still  breathing.  I  re 
turned  [and]  as  the  pang  of  his  death  had  been  felt  by  his 
mother  and  [I]  was  confident  he  must  die,  I  concealed  his 
being  alive  and  prevailed  on  her  to  take  refuge  with  her  mother 
who  lived  the  next  door  across  an  open  square  from  her.  The 
child  lived  two  days,  during  which  I  was  agonized  with  its 
condition  and  with  the  occasional  hope,  though  the  case  was 
desperate,  that  I  might  enrapture  his  mother  with  the  intelli 
gence  of  his  restoration  to  us.  After  the  event  had  taken  place 


136  THE  POLITICAL  AND  ECONOMIC 

his  mother  could  not  bear  to  return  to  the  house  she  had  left 
and  remained  with  her  mother  a  fortnight.  I  then  addressed 
to  her  a  letter  in  verse  in  which  our  mutual  loss  was  deplored, 
our  lost  children  spoken  of  with  the  parental  feeling  which  be 
longed  to  the  occasion,  her  affection  for  those  who  survived  was 
appealed  to,  and  her  religious  confidence  in  the  wisdom  and 
goodness  of  Providence  excited.  The  letter  closed  with  a 
pressing  invitation  to  return  to  me  and  her  children.  This 
letter  has  been  delayed  for  the  purpose  of  sending  you  a  copy  of 
\\That  I  wrote.  But 't  is  lost. 

Your  affectionate 

J.  MARSHALL. 

The  child  mentioned  in  the  above  letter  was  Judge  Story's 
youngest  child,  which  died  in  May,  1831.  The  verses  referred 
to  are  printed  in  Story's  "Life  and  Letters  of  Joseph  Story," 
Vol.  II,  pp.  57-9. 

The  Doctor  Physic  mentioned  in  the  letter  below  was  Dr. 
Philip  S.  Physic,  who  was  at  that  time  the  most  eminent 
surgeon  in  Philadelphia,  if  not  in  the  whole  country.  In  a 
memoir  of  Doctor  Physic  by  Doctor  Randolph  of  Phila 
delphia  there  is  an  interesting  account  of  the  operation  on 
Chief  Justice  Marshall.59 

THE  HON'BLE  MR.  JUSTICE  STORY, 
Cambridge,  Massachusetts. 

PHILADELPHIA,  Oct.  i2th,  1831. 
MY  DEAR  SIR 

I  had  the  pleasure  of  receiving  in  the  course  of  the  mail  your 
very  friendly  letter  of  the  6th. 

I  have  been  under  the  doctor  ever  since  my  return  in  May 
from  North  Carolina  and  have  been  regularly  growing  worse. 
My  disease,  for  which  I  have  to  blame  myself,  was  mistaken. 
My  physician  suspected  it,  but  I  was  so  confident  against  him 
that  he  never  made  the  experiments  necessary  to  establish  the 
fact.  At  length  I  suffered  so  much  pain  and  became  so  alarmed 
as  to  determine  on  a  visit  to  this  place.  I  have  been  here  a 
fortnight.  Doctor  Physic,  whom  I  consulted  immediately,  pro 
ceeded  very  circumspectly.  He  made  some  examinations  which 
led  to  the  belief  that  I  had  probably  stone  in  the  bladder,  and 
on  applying  the  sound  at  different  intervals  has  decided  that  I 

59  Medical  Examiner,  Vol.  II,  pp.  280-281, 


DOCTRINES  OF  JOHN  MARSHALL  137 

have  one.  The  usual  operation  was  to  have  been  performed  a 
day  or  two  past  but  the  rainy  weather  has  confined  the  doctor, 
whose  health  is  extremely  delicate,  and  I  must  wait  till  we  see 
the  return  of  the  sun.  We  have  now  the  promise  of  a  fair  day, 
and  should  our  anticipations  be  realized  I  count  on  going 
through  the  operation  tomorrow. 

I  place  the  most  entire  confidence  in  Doctor  Physic,  never 
was  man  better  calculated  to  inspire  confidence  in  a  patient  than 
he  is.  His  profound  attention  to  the  case  and  his  patient  in 
investigation  of  the  symtoms,  added  to  his  very  high  reputation 
for  skill  as  a  surgeon,  produce  a  firm  conviction  that  nothing 
will  be  omitted  which  can  contribute  to  my  recovery.  I  look 
with  impatience  for  the  operation. 

Our  brother  Baldwin  is  here.  He  seems  to  have  resumed  the 
dispositions  which  impressed  us  both  so  favorably  at  the  first 
term.  This  is  as  it  should  be.  He  spoke  of  you  in  terms  not 
indicating  unfriendliness.  He  mentioned  our  next  winter's  ac 
commodations  in  such  A  manner  as  to  show  his  decided  prefer 
ence  for  Mrs.  Peyton's,  but  he  has  not  engaged  the  apartments. 
We  must  make  some  positivt  engagement  before  the  meeting  of 
Congress  or  we  shall  separate,  and  each  be  under  the  necessity 
of  providing  for  himself.  I  should  have  urged  an  immediate 
decision  had  I  not  been  restrained  by  some  communications 
which  have  passed  between  Mr.  Peters  And  Mr.  Ringold. 
When  Mr.  Peters  mentioned  that  subject  to  me  I  expressed  my 
decided  approbation  to  the  proposal  of  our  friend  to  receive  us 
in  his  house  provided  it  was  agreeable  to  our  brothers.  On 
reflection  I  suspect  the  situation  of  the  house,  between  the 
palace  and  Georgetown,  will  not  be  to  your  mind  nor  to  the 
mind  of  the  other  Judges.  I  shall  suggest  this  to  Peters. 
Should  this  conjecture  be  well  founded,  I  think  we  shall  do 
well  to  engage  immediately  with  Mrs.  Peyton. 

On  the  most  interesting  part  of  your  letter  I  have  felt  and 
still  feel,  great  difficulty.  You  understand  my  general  senti 
ments  on  that  subject  as  well  as  I  do  myself.  I  am  most 
earnestly  attached  to  the  character  of  the  department,  and  to 
the  wishes  and  convenience  of  those  with  whom  it  has  been  my 
pride  and  my  happiness  to  be  associated  for  so  many  years.  I 
cannot  be  insensible  to  the  gloom  which  lours  over  us.  I  have 
a  repugnance  to  abandoning  you  under  such  circumstances 
which  is  almost  invincible.  But  the  solemn  convictions  of  my 


138  THE  POLITICAL  AND  ECONOMIC 

judgment  sustained  by  some  pride  of  character  admonish  me 
not  to  hazard  the  disgrace  of  continuing  in  office  a  mere  in 
efficient  pageant. 

In  the  course  of  the  summer  I  resorted  to  different  courses  of 
medicine  none  of  which  were  of  any  service  to  me,  but  which 
had  a  sensible  influence  on  my  general  health.  My  nerves,  my 
digestion,  and  my  head  were  seriously  affected.  I  had  found 
myself  unequal  to  the  effective  consideration  of  any  subject, 
and  had  determined  to  resign  at  the  close  of  the  year.  This 
determination,  however,  I  kept  to  myself,  being  determined  to 
remain  master  of  my  own  conduct.  I  at  length  resolved  to 
take  no  more  medicine,  after  which  I  was  slowly  restored  to 
my  former  self.  This  occurred  about  the  time  of  my  leaving 
Richmond  for  this  place,  and  notwithstanding  the  pain  I  feel, 
I  recover  strength  daily.  I  have  therefore  determined  to  meet 
you  at  the  next  term,  and  to  postpone  anything  definitive  till 
then. 

Present  my  most  respectful  good  wishes  to  Mrs.  Story.  I 
indulge  the  hope  that  both  of  you  have  recovered  firmness 
enough  to  receive  the  dispensations  of  Providence,  however 
severe,  with  a  mind  fulness  of  the  great  duties  which  still  remain 
to  be  performed. 

With  esteem  and  affection  yours  truely, 

J.  MARSHALL. 

THE  HON'BLE  MR.  JUSTICE  STORY, 
Cambridge,  Massachusetts. 

PHILADELPHIA,  Novr  loth,  1831. 
MY  DEAR  SIR  : 

I  learn  with  much  regret  from  our  friend  Mr.  Peters  that 
you  have  been  seriously  indisposed.  I  fear  your  various 
duties  confine  you  too  closely.  You  must,  my  dear  Sir,  be 
careful  of  your  health.  Without  your  vigorous  and  power 
ful  cooperation  I  should  be  in  despair,  and  think  the  "  ship 
must  be  given  up." 

I  have  had  a  most  tedious  confinement.  At  length,  how 
ever,  I  leave  my  bed  and  walk  across  my  room.  This  I  do 
with  a  tottering  feeble  step.  It  is,  however,  hourly  improv 
ing,  and  I  hope  next  week  to  take  the  boat  for  Richmond  in 
time  to  open  my  court  on  the  22d.  Doctor  Physic  has  added 


DOCTRINES  OF  JOHN  MARSHALL  139 

to  consumate  skill  the  most  kind  and   feeling  attention.     I 
shall  never  forget  him. 

There  has  been  some  difficulty  about  our  next  winter's  ar 
rangement.     You  perceive  I  speak  confidently  of  meeting  you. 
At  length  it  seems  fixed  that  we  are  to  quarter  with  Ringold. 
Mr.  Peters  has  written  you  all  about  it.     I  was  a  little  appre 
hensive  that  you  would  be  unwilling  to  locate  yourself  so  far 
out  of  the  centre  of  the  city,  but  your  other  friends  seem  to 
think  you  will  be  greatly  pleased.     I  am  told  that  our  ac 
commodations  as  to  rooms  will  be  convenient,  and  as  to  every- 
hing  else  you  know  they  will  be  excellent.     Mr.  Johnson,  I 
im  told,  will  quarter  by  himself,  and  our  brother  McLean 
will  of  course  preserve  his  former  position.     The  remaining 
ive  will,  I  hope,  be  united. 

The  Circuit  Court  is  in  session  in  Philadelphia.  Our 
Brother  Baldwin  has  called  on  me  frequently.  He  is  in  good 
icalth  and  spirits,  and  I,  always  sanguine,  hope  that  the  next 
;rm  will  exhibit  dispositions  more  resembling  those  dis- 
>layed  in  the  first  than  the  last. 

I  am  at  present  and  have  been  all  the  summer  very  unfit 
:or  serious  business.  I  was  not  one  moment  free  from  pain 
rrom  the  time  I  parted  with  you  till  the  operation  was  per- 
ormed  which  extracted  about  1000  calculi.  You  may  judge 
low  much  I  suffered.  The  pain  increased  daily  and  disquali- 
ied  me  for  serious  thought.  Thank  Heaven,  I  have  reason 
o  hope  that  I  am  relieved.  I  am,  however,  under  the  very 
disagreeable  necessity  of  taking  medicine  continually  to  pre 
sent  new  formations.  I  must  submit  too  to  a  severe  and 
most  unsociable  regimen.  Such  are  the  privations  of  age. 
You  have  before  you,  I  trust,  many,  very  many  years  unclouded 
}y  such  dreary  prospects. 

Farewell.     You  have  the  best  wishes  of  him  who  is  with 
iffectionate  esteem 

Your  J,  MARSHALL. 

The  volume  referred  to  in  the  following  letter  as  "  The 
American  Library  of  Useful  Knowledge  "  was  published  in 
1831,  and  contained  among  other  essays  a  discourse  by  Judge 
Story  on  "  Developments  of  Science  and  Mechanic  Art,"  de- 

ivered  before  the  Boston  Mechanics'  Institute,  and  reprinted 

n  Story's  "  Miscellaneous  Writings." 


140  THE  POLITICAL  AND  ECONOMIC 

Hon.  Charles  F.  Mercer  and  Hon.  John  S.  Barbour,  who 
are  referred  to  in  the  following  letter,  were  members  of  the 
House  of  Representatives,  from  Virginia. 

THE  HON'BLE  MR.  JUSTICE  STORY, 
Cambridge,  Massachusetts. 

RICHMOND,  August  2d,  1832 
MY  DEAR  SIR  : 

I  am  greatly  in  your  debt,  more  especially  for  the  first 
volume  of  the  American  Library  of  Useful  Knowledge,  and 
have  so  long  neglected  to  acknowledge  my  obligations  that  I 
am  not  sure  I  should  not,  according  to  the  practice  of  in 
solvents,  have  put  it  off  altogether  had  I  not  been  placed  in  a 
situation  to  ask  further  assistance  from  you. 

Congress  has  passed  an  act  to  increase  and  improve  its 
law  library,  a  copy  of  which  has  just  been  transmitted  to  me 
by  the  librarian.  It  appropriates  500$  for  the  present  year, 
to  be  expended  in  the  purchase  of  law  books  by  the  librarian, 
in  pursuance  of  such  catalogue  as  shall  be  furnished  him  by 
the  Chief  Justice  of  the  United  States.  I  wish  it  had  been 
"  as  shall  be  furnished  him  by  Mr.  Justice  Story."  How 
ever,  we  must  correct  this  erratum  as  well  as  we  can. 

As  I  know  your  appetite  for  labor,  I  feel  the  less  compunc 
tion  in  offering  you  a  very  large  share  like  this.  Indeed,  if 
you  can  take  the  whole  I  can  readily  spare  it.  Will  you  then 
transmit  me  a  list  of  such  law  books  as  you  would  wish  (or 
rather,  as  ought  in  your  judgement)  to  be  added  to  the  law 
library.  You  probably  recollect  enough  of  them  without 
seeing  a  catalogue  to  supply  a  list  of  those  which  are  want 
ing.  Say  if  you  think  there  ought  to  be  duplicates  of  par 
ticular  books. 

The  librarian  informs  me  that  he  has  already  ordered  a 
continuation  of  those  British  reports  which  are  in  progress  of 
which  he  has  the  beginning  volumes,  and  of  the  American 
reporters. 

I  ascribe  the  honor  now  done  me  to  our  friend  Peters,  and 
therefore  think  I  may  ask  him  also  for  aid  in  my  difficulty.  I 
shall  probably  write  to  him. 

We  are  up  to  the  chin  in  politics.  Virginia  was  always  in 
sane  enough  to  be  opposed  to  the  bank  of  the  United  States, 
and  therefore  hurras  for  the  veto.  But  we  are  little  doubt- 


DOCTRINES  OF  JOHN  MARSHALL  141 

ful  how  it  may  work  in  Pennsylvania.  It  is  not  difficult  to  ac 
count  for  the  part  New  York  may  take.  She  has  sagacity 
enough  to  see  her  interests  in  putting  down  the  present  bank. 
Her  mercantile  position  gives  her  a  control,  a  commanding 
control,  over  the  currency  and  the  exchanges  of  the  country, 
if  there  be  no  bank  of  the  United  States.  Going  for  her 
self  she  may  approve  this  policy;  but  Virginia  ought  not  to 
drudge  for  her  benefit. 

We  show  our  wisdom  most  strikingly  in  approving  the 
veto  on  the  harbor  bill  also.  That  bill  contained  an  appro 
priation  intended  to  make  Richmond  a  seaport,  which  she 
is  not  at  present,  for  large  vessels  fit  to  cross  the  Atlantic. 
The  appropriation  was  whittled  down  in  the  House  of  Rep 
resentatives  to  almost  nothing,  in  consequence  of  the  total 
misunderstanding  of  the  case  by  Mercer.  Yet  we  wished  the 
appropriation  because  we  were  confident  that  Congress  when 
correctly  informed,  would  add  the  necessary  sum.  This  too 
is  vetoed ;  and  for  this  too  our  sagacious  politicians  are  thank 
ful.  We  seem  to  think  it  the  summit  of  human  wisdom,  or 
rather  of  American  patriotism,  to  preserve  our  poverty. 

Our  great  political  and  party  guide,  The  Enquirer,  has  not 
been  able  to  make  Mr.  Barbour  pull  in  the  traces.  He  has 
broke  loose  and  is  fairly  in  the  field.  I  do  not  precisely  know 
how  this  will  work.  He  is  supported  by  the  most  violent 
of  the  state  right  party,  who  are  also  strong  for  the  existing 
President.  There  might  be  some  difficulty  in  managing  this 
tangled  business  were  not  the  Jackson  majority  so  overwhelm 
ing  as  to  leave  his  friends  nothing  to  fear  from  a  division. 
Some  of  the  friends  of  Barbour  are  secretly  for  Calhoun ; 
but  though  attached  to  nullification  in  principle  they  dare  not 
favor  the  name.  Besides  the  basement  story  is  so  firm  that 
those  who  are  supported  on  it  dare  not  totter. 

Things  to  the  South  wear  a  very  serious  aspect.  If  we 
can  trust  appearances  the  leaders  are  determined  to  risk  all 
thA  consequences  of  dismemberment.  I  cannot  entirely  diss- 
rniss  the  hope  that  they  may  be  deserted  by  their  followers, — 
at  least  to  such  an  extent  as  to  produce  a  cause  at  the 
Rubicon.  They  undoubtedly  believe  that  Virginia  will  sup 
port  them.  I  think  they  are  mistaken  both  with  respect  to 
Virginia  and  North  Carolina.  I  do  not  think  either  State 
will  embrace  this  mad  and  wicked  measure.  New  Hampshire 


142  THE  POLITICAL  AND  ECONOMIC 

and  Maine  seem  to  belong  to  the  tropics.  It  is  time  for  New 
Hampshire  to  part  with  Webster  and  Mason.  She  has  no 
longer  any  use  for  such  men. 

I  am  just  preparing  for  my  usual  excursion  to  the  moun 
tains.  Would  that  I  could  meet  you  there.  It  would  se 
cure  you  from  the  cholera.  Our  whole  seaboard  will,  I  fear, 
be  overrun  with  it.  In  New  York  it  has,  I  perceive,  been 
carried  to  the  western  frontier.  It  is  too  visiting  our  lakes. 
You  are  surrounded  by  it.  That  Providence  may  protect  us, 
especially  Boston  and  Richmond,  is  the  earnest  prayer  of 
your  truely  affectionate 

J.  MARSHALL. 

THE  HON'BLE  MR.  JUSTICE  STORY, 
Cambridge,  Massachusetts. 

RICHMOND,,  September  22d,  1832. 
MY  DEAR  SIR  : 

I  am  greatly  indebted  to  you  for  your  favor  of  the  I4th. 
Without  your  assistance  I  should  have  found  it  impossible, 
or  at  least  very  difficult,  to  comply  with  the  duty  assigned  me 
by  Congress.  I  have  given  you  a  great  deal  of  trouble,  which 
I  regret, —  the  less  because  you  love  law  and  love  labor. 
Forty  years  hence  your  passion  for  the  one  and  the  other 
may  be  somewhat  diminished. 

I  have  curtailed  your  list  of  books  very  much  for  two 
reasons.  One,  that  by  far  the  greater  number  of  those  you 
have  mentioned  are  already  in  the  library,  and  I  am  unwilling 
to  exhaust  the  fund  by  procuring  duplicates;  the  other,  that 
we  may  supply  what  is  required  by  a  better  selection  of  dupli 
cates  when  we  meet  this  winter,  if  we  should  meet,  and  shall 
have  the  advantage  of  knowing  precisely  how  much  money 
remains  to  be  employed.  I  have  said  nothing  about  the  Amer 
ican  reports,  because  I  understand  from  the  librarian  that  he 
has  already  directed  them  all  to  be  purchased.  In  my  letter 
inclosing  the  list  I  have  said  that  I  so  understand  his  com 
munication  and  have  requested,  if  I  have  misunderstood  him, 
that  he  will  correct  the  error  by  purchasing  all  the  American 
reports  not  in  the  library.  This  is  a  fund  of  information 
on  which  the  Supreme  Court  must  be  always  at  liberty  to 
draw  ad  libitum. 

I  am  very  much  gratified  at  hearing  that  you  are  so  near 


DOCTRINES  OF  JOHN  MARSHALL          143 

completing  your  course  on  constitutional  law,  and  enriching 
the  political  and  legal  literature  of  your  country  with  it.  The 
task  was  arduous,  but  not  above  your  strength,  and  you  have 
engaged  in  it  with  hearty  good  will.  I  anticipate  much  pleas 
ure  as  well  as  information  from  perusing  the  work,  and  can 
assure  you  in  anticipation  that  I  shall  not  be  among  the 
growlers  you  may  expect  to  hear.  I  shall  not  be  among 
those  who  bring  on  you  the  charge  of  "  apostacy  "  and  ultra- 
ism.  I  shall  like  to  see  how  in  your  quotations  from  the  sage 
you  mention  you  imitate  the  bee  in  extracting  honey  from 
poison.  I  have  no  doubt,  however  dexterous  the  operation, 
that  you  will  be  well  stung  in  requital  for  your  skill  and 
industry. 

If  the  prospects  of  our  country  inspire  you  with  gloom  how 
do  you  think  a  man  must  be  affected  who  partakes  of  all  your 
opinions  and  whose  geographical  position  enables  him  to  see 
a  great  deal  that  is  concealed  from  you.  I  yield  slowly  and 
reluctantly  to  the  conviction  that  our  constitution  •  cannot 
last.  I  had  supposed  that  north  of  the  Potowmack  a  firm 
and  solid  government  competent  to  the  security  of  rational 
liberty  might  be  preserved.  Even  that  now  seems  doubtful. 
The  case  of  the  south  seems  to  me  to  be  desperate.  Our 
opinions  are  incompatible  with  a  united  government  even 
among  ourselves.  The  union  has  been  prolonged  thus  far  by 
miracles.  I  fear  they  cannot  continue. 

Yours  affectionately, 

J.  MARSHALL. 

THE  HON'BLE  MR.  JUSTICE  STORY, 
Cambridge,  Massachusetts. 

RICHMOND,  Deer  25th,  1832. 
MY  DEAR  SIR  : 

I  had  yesterday  the  pleasure  of  receiving  your  letter  of  the 
iQth,  inclosing  a  proof  sheet  of  the  title  page  of  your  great 
work.  I  anticipate  the  pleasure  its  perusal  will  give  me. 

Truely  sensible  as  I  am  that  the  commendation  bestowed 
on  the  Chief  Justice,  both  in  the  dedication  and  the  preface, 
greatly  transcends  his  merit,  and  confident  as  I  am  that  the 
judgement  of  the  public  will  confirm  this  opinion,  I  am  yet 
deeply  penetrated  by  the  evidence  it  affords  of  the  continuance 
of  that  partial  esteem  and  friendship  which  I  have  cherished 


144  THE  POLITICAL  AND  ECONOMIC 

for  so  many  years,  and  still  cherish  as  one  of  the  choicest 
treasures  of  my  life.  The  only  return  I  can  make  is  locked 
up  in  my  own  bosom,  or  communicated  in  occasional  con 
versation  with  my  friends. 

I  congratulate  you  on  the  accomplishment  of  your  pur 
pose  and  on  finishing  the  Herculean  task  you  had  undertaken. 
I  know  no  person  but  yourself  who  could  have  sustained 
properly  this  vast  additional  labor.  I  cannot  doubt  either  the 
ability  or  correctness  with  which  it  is  executed,  and  am  cer 
tain  in  advance  that  I  shall  read  every  sentence  with  entire 
approbation.  It  is  a  subject  on  which  we  concur  exactly. 
Our  opinions  on  it  are,  I  believe,  identical.  Not  so  with  Vir 
ginia  or  the  South  generally. 

Our  legislature  is  now  in  session,  and  the  dominant  party 
receives  the  message  of  the  President  to  Congress  with  en 
thusiastic  applause.  Quite  different  was  the  effect  of  his 
proclamation.  That  paper  astonished,  confounded,  and  for 
a  moment  silenced  them.  In  a  short  time  however,  the 
power  of  speech  was  recovered,  and  was  employed  in  bestow 
ing  on  its  author  the  only  epithet  which  could  possibly  weigh 
in  the  scales  against  the  name  of  "  Andrew  Jackson,"  and 
countervail  its  popularity.  Imitating  the  Quaker  who  said 
the  dog  he  wished  to  destroy  was  mad,  they  said  Andrew  Jack 
son  had  become  a  Federalist,  even  an  ultra  Federalist.  To 
have  said  he  was  ready  to  break  down  and  trample  on  every 
other  department  of  the  government  would  not  have  injured 
him,  but  to  say  that  he  was  a  Federalist, —  a  convert  to  the 
opinions  of  Washington,  was  a  mortal  blow  under  which  he 
is  yet  staggering. 

The  party  seems  to  be  divided.  Those  who  are  still  true 
to  their  President  pass  by  his  denunciation  of  all  their  former 
theories ;  and  though  they  will  not  approve  the  sound  opinions 
avowed  in  his  proclamation  are  ready  to  denounce  nullifica 
tion  and  to  support  him  in  maintaining  the  union.  This  is 
going  a  great  way  for  them, —  much  farther  than  their 
former  declarations  would  justify  the  expectation  of,  and 
much  farther  than  mere  love  of  union  would  carry 
them. 

You  have  undoubtedly  seen  the  message  of  our  Governor 
and  the  resolutions  reported  by  the  committee  to  whom  it 
was  referred, —  a  message  and  resolutions  which  you  will 


DOCTRINES  OF  JOHN  MARSHALL  145 

think  skillfully  framed  had  the  object  been  a  civil  war.  They 
undoubtedly  hold  out  to  South  Carolina  the  expectation  of 
support  from  Virginia;  and  that  hope  must  be  the  founda 
tion  on  which  they  have  constructed  their  plan  for  a  southern 
confederacy  or  league.  A  want  of  confidence  in  the  present 
support  of  the  people  will  prevent  any  direct  avowal  in  favor 
of  this  scheme  by  those  whose  theories  and  whose  secret 
wishes  may  lead  to  it ;  but  the  people  may  be  entangled  by  the 
insane  dogmas  which  have  become  axioms  in  the  political 
creed  of  Virginia,  and  involved  so  inextricably  in  the  laby 
rinth  into  which  those  dogmas  conduct  them,  as  to  do  what 
their  sober  judgement  disapproves. 

On  Thursday  these  resolutions  are  to  be  taken  up,  and  the 
debate  will,  I  doubt  not,  be  ardent  and  tempestuous  enough. 
I  pretend  not  to  anticipate  the  result.  Should  it  countenance 
the  obvious  design  of  South  Carolina  to  a  form  of  southern 
confederacy,  it  may  conduce  to  a  southern  league, —  never  to 
a  southern  government.  Our  theories  are  incompatible  with 
a  government  for  more  than  a  single  State.  We  can  form  no 
union  which  shall  be  closer  than  an  alliance  between  sover 
eigns.  In  this  event  there  is  some  reason  to  apprehend  in 
ternal  convlusion.  The  northern  and  western  section  of  our 
State,  should  a  union  be  maintained  north  of  the  Potowmack, 
will  not  readily  connect  itself  with  the  South.  At  least  such 
is  the  present  belief  of  their  most  intelligent  men.  Any  ef 
fort  on  their  part  to  separate  from  Southern  Virginia  and 
unite  with  a  northern  confederacy  may  probably  be  punished 
as  treason.  "  We  have  fallen  on  evil  times." 

I  thank  you  for  Mr.  Webster's  speech.  Entertaining  the 
opinion  he  has  expressed  respecting  the  general  course  of  the 
administration,  his  patriotism  is  entitled  to  the  more  credit 
for  the  determination  he  expressed  in  Faneuil  Hall  to  sup 
port  it  in  the  great  effort  it  promises  to  make  for  the  pres 
ervation  of  the  union.  No  member  of  the  then  opposition 
avowed  a  similar  determination  during  the  Western  Insur 
rection,  which  would  have  been  equally  fatal  had  it  not  been 
quelled  by  the  well  timed  vigor  of  General  Washington.  We 
are  now  gathering  the  bitter  fruits  of  the  tree  even  before 
that  time  planted  by  Mr.  Jefferson,  and  so  industriously  and 
perseveringly  cultivated  by  Virginia. 

You  have  doubtless  heard  from  Mr.  Peters  the  affliction 


146  THE  POLITICAL  AND  ECONOMIC 

with  which  our  brother  Baldwin  has  been  visited.     It  can 
not,  I  trust,  be  of  long  continuance. 

We  shall  meet  once  more  at  Washington,  Till  then  adieu. 
Your  faithful  and  affectionate  friend. 

J.  MARSHALL. 

The  speech  mentioned  in  the  above  letter  was  delivered  by 
Daniel  Webster  at  a  crowded  meeting  held  in  Faneuil  Hall, 
in  the  forenoon  of  December  17,  1832.  It  is  preserved  only 
in  the  contemporary  newspaper  reports,  which  are  said  to  be 
somewhat  abridged.  Referring  to  President  Jackson's  Proc 
lamation,  Mr.  Webster  said :  "  Mr.  Chairman,  the  general 
principles  of  the  Proclamation  are  such  as  I  entirely  approve. 
I  esteem  them  to  be  the  true  principles  of  the  Constitution. 
It  must  now  be  apparent  to  every  man,  that  this  doctrine  of 
nullification  means  resistance  to  the  laws  by  force.  It  is  but 
another  name  for  civil  war.  .  .  .  The  President  has  declared 
that  in  meeting  the  exigencies  of  this  crisis,  it  is  his  de 
termination  to  execute  the  laws,  to  preserve  the  Union  by  all 
constitutional  means;  to  arrest,  if  possible,  by  moderate,  but 
fair  measures,  the  necessity  of  a  recourse  to  force;  and  so  to 
conduct,  that  the  curse  impending  on  the  shedding  of  fra 
ternal  blood  shall  not  be  called  down  by  any  offensive  act  on 
the  part  of  the  United  States.  In  all  this  I  most  cordially 
concur.  ...  I  think  I  can  say  nothing  more  satisfactory  at 
this  meeting,  or  to  the  people  of  this  Commonwealth  than 
that  in  this  way  of  meeting  this  crisis  I  shall  give  the  Presi 
dent  my  entire  and  cordial  support.  .  .  .  Mr.  Chairman,  in 
this  alternative  my  choice  is  made.  I  am  for  the  Union  as 
it  is.  I  am  content  with  no  Government  less  than  that  which 
embraces  the  whole  Four  and  Twenty  States.  I  am  for  the 
Constitution  as  it  is;  a  Constitution  under  which  those  Four 
and  Twenty  States  have  risen  to  a  height  of  prosperity,  unex 
ampled,  in  the  history  of  mankind.  I  shall  support  the  Presi 
dent  in  maintaining  this  Union  and  this  Constitution;  and 
the  cause  shall  not  fail  for  want  of  any  aid,  any  effort,  or 
any  zealous  co-operation  of  mine." 

The  "  affliction  with  which  our  brother  Baldwin  has  been 
visited,"  mentioned  above,  is  best  explained  in  a  letter  from 
Philadelphia,  dated  December  27,  in  which  Mr.  Webster 
writes  to  Judge  Story:  "  I  learn  that  Judge  Baldwin  has 


DOCTRINES  OF  JOHN  MARSHALL  147 

recently  manifested  an  alienation  of  mind.  He  is  now  under 
the  hands  of  medical  men  &  confined  to  his  own  house.  It  is 
said  to  be  a  decided  case."  Henry  Baldwin  was  born  in  New 
Haven,  Connecticut,  January  14,  1780,  and  was  appointed  by 
President  Jackson  an  Associate  Justice  of  the  Supreme  Court 
in  January,  1830,  which  office  he  held  until  his  death,  in 
Philadelphia,  April  21,  1844.  In  1837  ne  published  a  volum 
inous  pamphlet  entitled  "  A  general  View  of  the  Origin  and 
Nature  of  the  Constitution  and  Government  of  the  United 
States,"  in  opposition  to  the  constitutional  doctrines  of  Judge 
Marshall  and  Judge  Story. 

The  "  totally  forgotten  letter  "  mentioned  in  the  following 
letter  was  written  at  the  time  Judge  Marshall  was  chosen  a 
Corresponding  Member  of  the  Massachusetts  Historical  So 
ciety,  August  29,  1809.  In  his  letter  of  acceptance,  dated 
Richmond,  September  20,  1809,  Judge  Marshall  wrote  to  the 
Corresponding  Secretary  of  the  Society  as  follows: 

"  On  my  return  from  a  tour  to  our  mountains  I  had  the 
pleasure  of  finding  your  letter  of  the  ist  inst.,  which  I  hasten 
to  acknowledge.  Permit  me,  Sir,  through  you  to  assure  the 
Massachusetts  Historical  Society  that  I  receive  with  just  sen 
sibility  the  honor  they  have  been  pleased  to  confer  on  me  in 
placing  me  among  their  corresponding  members.  Should  I 
be  less  useful  than  many  of  those  with  whom  I  am  associated, 
that  circumstance,  I  entreat  them  to  believe,  will  not  be  im- 
putable  to  an  improper  estimate  of  the  value  of  the  institu 
tion,  or  to  a  want  of  respect  for  those  who  compose  it.  For 
the  flattering  terms  in  which  you  have  been  pleased  to  com 
municate  the  vote  of  the  Society  I  pray  you  to  accept  my 
thanks.  I  shall  not  be  in  Washington  till  February.  Per 
haps  some  member  of  Congress  may  without  inconvenience 
find  room  in  his  baggage  for  the  volume  you  mention." 

In  a  second  letter  to  Dr.  Eliot,  dated  April  23,  1810,  Judge 
Marshall  writes :  "  I  had  the  pleasure  of  receiving  from  Mr. 
Quincy  your  letter  of  the  3d  of  Novr,  together  with  the  two 
volumes  which  accompanied  it.  Permit  me  to  offer  my 
thanks  for  this  attention,  &  to  rely  upon  it  as  a  pledge  that 
the  additional  trouble  I  am  about  to  give  you  will  not  be  irk 
some.  I  could  wish  to  place  in  my  library  as  many  of  the 
volumes  of  the  Collections  of  the  Society  as  are  attainable 


i48  THE  POLITICAL  AND  ECONOMIC 

without  inconvenience,  but  while  I  solicit  your  aid  in  the  ac 
complishment  of  this  wish  I  must  accompany  it  with  a  re 
quest  that  you  will  procure  those  volumes  only,  which  either 
by  having  gone  through  a  second  edition  or  from  the  numbers 
of  the  first  are  now  attainable  with  entire  facility.  I  would 
by  no  means  impose  on  your  goodness  so  far  as  to  render  any 
research  necessary.  As  I  neither  know  the  number  of  vol 
umes  which  come  within  the  scope  of  this  request  nor  the 
price  of  them,  I  cannot  remit  the  precise  sum  which  may  be 
necessary,  but  assure  that  on  the  first  intimation  from  your 
self  this  unavoidable  omission  shall  be  supplied." 

The  "  compliment  paid  by  your  Athenaeum  "  refers  to  the 
request  of  the  Trustees  of  the  Boston  Athenaeum,  made  sev 
eral  years  before,  that  Chief  Justice  Marshall  would  sit  for 
his  portrait.  At  a  meeting  of  the  Trustees,  December  8, 
1829,  it  was  "  Voted,  That  the  sum  of  two  hundred  dollars 
be  appropriated  for  a  portrait  of  Chief  Justice  Marshall  by 
Mr.  Harding,  and  that  the  Vice-President  of  this  institution 
be  a  committee  to  request  Judge  Marshall  to  sit  for  the  same." 
In  his  letter  to  Mr.  Harding,  the  Vice-President,  the  Hon. 
Francis  C.  Gray,  writes :  "  We  expect  a  first-rate  picture  and 
hope  you  will  not  stint  the  size  nor  neglect  the  execution  of 
any  account."  The  portrait  was  completed  in  season  to  be 
exhibited  for  the  first  time  in  the  Athenaeum's  exhibition  of 
Paintings  in  the  summer  of  1830.  It  is  the  full-length  por 
trait  which  now  hangs  in  the  entrance  hall  of  the  Athenaeum. 
A  copy  of  this  portrait  was  given  to  the  Law  School  at  Har 
vard,  in  1847,  by  Professor  Greenleaf  and  others. 

THE  HON'BLE  MR.  JUSTICE  STORY, 
Cambridge,  Massachusetts. 

RICHMOND,  April  24th,  1833. 
MY  DEAR  SIR  : 

I  had  the  pleasure  some  days  past  of  receiving  your  favor 
of  the  loth,  but  deferred  my  answer  till  I  could  also  acknowl 
edge  your  very  valuable  present  which  it  announced.  The 
Lucy  &  Abigail  is  now  arrived,  and  has  delivered  the  package 
containing  your  Commentaries  and  Allison's  Sermons,  for 
both  of  which  I  thank  the  donors. 

As  favors  generally  beget  a  disposition  to  make  farther  de 
mands  on  the  kindness  which  confers  them,  I  have  ventured 


DOCTRINES  OF  JOHN  MARSHALL  149 


to  impose  on  you  the  trouble  of  distributing  some  books  among 
your  friends  and  neighbors  to  whom  I  wish  to  be  civil,  and 
have  sent  a  few  copies  of  the  Life  of  Washington  for  that 
purpose.  One  you  will  perceive  is  for  Mr.  Webster  and  one 
for  Mr.  Adams. 

In  looking  over  some  old  papers  the  other  day  to  determine 
how  many  of  them  were  worthy  of  being  committed  to  the 
flames,  I  found  a  totally  forgotten  letter  (you  need  not  com 
municate  this)  from  the  Historical  Society  of  Massachusetts 
(or  Boston),  announcing  that  I  had  been  elected  an  honorary 
member.  To  show  my  gratitude  for  this  distinction,  I  ask 
them  to  accept  my  book, —  a  poor  return  indeed,  but  the 
only  one  I  can  make. 

You  know  what  a  compliment  has  been  paid  me  by  your 
Athenaeum.  I  have  been  truly  flattered  by  it,  and  hope  the 
society  will  receive  my  book, —  not  surely  as  anything  like  an 
equivalent,  but  as  a  testimonial  of  my  grateful  sense  of  the 
favorable  sentiment  that  society  has  manifested  for  me.  The 
widow's  mite,  you  know,  proved  the  heart  more  than  the  rich 
gifts  of  the  wealthy. 

I  wish  you  to  present  the  copy  intended  for  Mrs.  Ledyard 
in  your  very  best  manner.  Tell  her  how  infinitely  I  feel  the 
obligation  she  has  conferred  on  me.  I  was  extremely  anxious 
to  obtain  Allison's  Sermons  for  the  reasons  I  mentioned  to 
you,  and  you  may  assure  Mrs.  Ledyard  that  their  value  is 
enhanced  greatly  by  the  hand  which  gives  them. 

In  the  receipt  which  I  took  for  the  freight  Captain  New- 
comb  promised  to  deliver  the  box  to  his  owners  —  I  think  he 
calls  them  George  Thresher  &  Co.  or  George  Thorcher  & 
Co.,  Long  Wharf.  Though  you  New  England  men,  all  or 
most  of  you,  beat  copperplate  in  your  writing  this  captain 
rather  poses  me.  If  I  mistake  his  letters,  you,  however,  prob 
ably  know  his  owners. 

I  am  truly  delighted  that  your  Commentaries  are  published. 
I  shall  read  them  eagerly  myself,  and  wish  most  ardently  that 
they  may  be  read  by  others  to  whom  they  would  be  still  more 
useful.  The  copy  intended  for  the  schools  will  do  much  good 
where  the  teachers  introduce  it.  I  greatly  fear  that  south 
of  the  Potomack,  where  it  is  most  wanted,  it  will  be  least 
used.  It  is  a  Mahomedan  rule,  I  understand,  "  never  to  dis 
pute  with  the  ignorant,"  and  we  of  the  truth  faith  in  the 


150  THE  POLITICAL  AND  ECONOMIC 

South  abjure  the  contamination  of  infidel  political  works.  It 
would  give  our  orthodox  nullifyer  a  fever  to  read  the  heresies 
of  your  Comentaries.  A  whole  school  might  be  infected  by 
the  atmosphere  if  a  single  copy  should  be  placed  on  one  of 
the  shelves  of  a  bookcase. 

By  the  way,  since  I  have  breathed  the  air  of  James  River 
I  think  favorably  of  Clay's  bill.  I  hope,  if  it  can  be  main 
tained  that  our  manufactures  will  still  be  protected  by  it. 
Have  you  ever  seen  anything  to  equal  the  exhibition  in  Char 
leston  and  in  the  far  South  generally?  Those  people  pursue 
a  southern  league  steadily  or  they  are  insane.  They  have 
caught  at  Clay's  bill,  if  their  conduct  is  at  all  intelligible,  not 
as  a  real  accommodation,  a  real  adjustment,  a  real  relief  from 
actual  or  supposed  oppression,  but  as  an  apology  for  avoiding 
the  crisis  and  deferring  the  decisive  moment  till  the  other 
States  of  the  South  will  unite  with  them. 

With  affectionate  esteem  I  am 

Your 

J.  MARSHALL. 

THE  HON'BLE  MR.  JUSTICE  STORY, 
Cambridge,  Massachusetts. 

RICHMOND,  June  3d,  1833. 
MY  DEAR  SIR: 

I  am  greatly  obliged  by  your  letter  of  the  24th  of  May. 
Your  conjecture  that  my  enquiry  related  to  Randolph's  case 
was  well  founded.  My  letter  did  not  present  the  difficulty 
because  I  did  not  then  comprehend  it  myself.  I  wrote  it  on 
the  bench,  just  after  seeing  a  paper  which  stated  that  a  war 
rant  to  apprehend  him  would  be  demanded.  No  copy  of  the 
laws  of  Congress  was  in  the  courtroom,  and  the  hour  for 
closing  the  mail  was  arrived.  I  wrote  without  looking  at 
the  act.  As  I  anticipated,  the  application  was  made  on  my  re 
turn,  and  I  felt  the  difficulty  of  the  case.  The  reason  and 
policy  of  apprehending  in  the  States  for  trial  in  the  District 
or  in  a  territory  are  obvious.  The  fact  too  that  Mr.  Watkins 
had  been  arrested  in  Pensylvania  for  trial  in  Washington 
seemed  to  be  a  decision,  perhaps  by  a  Judge  of  the  United 
States,  in  favor  of  issuing  the  warrant.  Yet  the  language 
of  the  33d  Sec.  appeared  to  me  to  limit  the  power  of  arrest  to 
cases  where  the  person  was  arrested  for  trial  before  a  court 


DOCTRINES  OF  JOHN  MARSHALL  151 

which  by  the  Judicial  Act  has  cognizance  of  the  offence.  This 
restraint  upon  the  power  is  absurd,  and  could  not,  I  believe, 
have  been  imposed,  had  the  Congress  perceived  its  effect,  but 
it  cannot  be  disregarded. 

I  was  truely  embarrassed,  but  at  length  determined  not  to 
grant  the  warrant. 

The  application  was  accompanied  with  an  able  opinion  of 
the  Attorney  General  in  support  of  it.  He  found  himself  in 
some  measures  on  proceedings  which  have  taken  place  in 
some  previous  cases,  in  some  measures  on  the  fact  that  sev 
eral  courts  have  been  constituted  since  the  passage  of  the  act 
of  1789,  and  in  some  measures  on  the  circumstance  that  all 
the  courts  are  now  in  the  exercise  of  jurisdiction  under  the 
act  of  1802,  not  under  the  act  of  1789. 

These  are  serious  difficulties,  but  Congress  ought  to  re 
move  them.  In  the  meantime  they  deserve  the  consideration 
of  all  the  Judges. 

I  rejoice  to  hear  that  the  abridgement  of  your  Commen 
taries  is  coming  before  the  public,  and  should  be  still  more 
rejoiced  to  learn  that  it  was  used  in  all  our  colleges  and  uni 
versities.  The  first  impressions  made  on  the  youthful  mind 
are  of  vast  importance;  and  most  unfortunately,  they  are  in 
the  South  all  erroneous.  Our  young  men  generally  speak 
ing,  grow  up  in  the  firm  belief  that  liberty  depends  on  con 
struing  our  constitution  into  a  league  instead  of  a  government ; 
that  it  has  nothing  to  fear  from  breaking  these  United  States 
into  numerous  petty  republics.  Nothing  in  their  view  is  to 
be  feared  but  that  bugbear,  consolidation ;  and  every  exer 
cise  of  legitimate  power  is  construed  into  a  breach  of  the  con 
stitution.  Your  book,  if  read,  will  tend  to  remove  these  preju 
dices. 

Your  affectionate  friend. 

J.  MARSHALL. 

THE  HON'BLE  MR.  JUSTICE  STORY, 
Cambridge,  near  Boston. 

RICHMOND,  Novr  i6th,  1833. 
MY  DEAR  SIR: 

I  thank  you  for  your  last  letter.  Though  my  thanks  are 
postponed  they  are  not  the  less  sincere.  The  difficulty  sug 
gested  is  somewhat  changed  in  its  aspect,  but  is  not  removed. 


152  THE  POLITICAL  AND  ECONOMIC 

The  attachment  was  served  in  my  absence,  and  an  applica 
tion  is  made  to  a  State  Judge  for  a  writ  of  habeas  corpus. 
It  is  now  under  consideration,  and  will  probably  be  awarded. 
Whether  the  motion  be  granted  or  rejected,  I  expect  the  ques 
tion  to  be  brought  before  me,  and  shall  if  possible  bring  it  be 
fore  the  Supreme  Court  or  suspend  it  till  the  Judges  can  be 
consulted. 

I  have  just  received  a  letter  from  Mr.  Ringold  informing 
me  that  he  has  moved  his  family  out  of  the  city  and  conse 
quently  cannot  accomodate  us  next  winter.  What  is  to  be 
come  of  us?  What  arrangement  can  be  made?  Shall  we  go 
to  the  place  selected  by  our  brother  Johnson  near  the  capitol, 
or  what  other  location  shall  we  make?  If  you  have  held  any 
communication  with  our  brother  Thompson  since  his  last  and 
greatest  affliction,  or  can  hold  any  with  him,  will  you  con 
sult  him  and  if  possible  determine  on  something?  I  will  hold 
myself  in  readiness  to  join  you  anywhere.  If  you  fix  on  any 
place,  let  me  know  it.  If  you  do  not  then  say  where  we  shall 
meet. 

/     The  political  world,  at  least  our  part  of  it,  is  surely  moved 

/  topsy-turvy.  What  is  to  become  of  us  and  of  our  constitu 
tion?  Can  the  wise  men  of  the  East  answer  the  question? 
Those  of  the  South  perceive  no  difficulty.  Allow  a  full  rage 

\   to  state  rights  and  state  sovereignty,  and,  in  their  opinion,  all 

Vwill  go  well. 

7   What  think  you  of  the  late  decision  of  our  brother  McClain 
in  Tennessee  ?     Does  it  accord  exactly  with  his  last  opinion  in 
the  Cherokee  case? 
Farewell. 

With  affectionate  esteem,  I  am  still  &  shall  ever  be 

Yours  truly. 
J.  MARSHALL. 

THE  HON'BLE  MR.  JUSTICE  STORY, 
Cambridge,  Massachusetts. 

RICHMOND,  Deer  3d,  1834. 
MY  DEAR  SIR  : 

I  am  so  accustomed  to  rely  on  you  for  aid  when  I  need  it 
that  you  must  not  be  surprised  at  the  present  application.  I 
trust  however  that  it  will  not  give  you  much  trouble. 


DOCTRINES  OF  JOHN  MARSHALL  153 

You  will  perceive  in  the  2  v  of  the  Life  of  Washington,  2d 
ed.,  p.  307-8,  an  account  of  the  defeat  of  Harden.  It  is 
stated  that  the  battle  was  fought  on  the  St.  Joseph.  I  have  re 
ceived  a  letter  from  a  gentleman  in  Chilicothe  which  gives 
probability  to  the  opinion  that  it  was  really  fought  on  Paint 
Creek,  a  stream  which  empties  into  the  Scioto  not  far  from 
Chilicothe.  Will  you  have  the  goodness  at  your  leisure  to 
make  some  enquiries  of  Mr.  Sparks,  and  learn  whether  the 
letter  to  General  Washington  giving  an  account  of  this 
battle  states  it  to  have  been  fought  on  the  St.  Joseph 
or  on  Paint  Creek.  You  need  not  hurry  yourself  on  this 
subject.  The  information  will  be  in  full  time  when  I  meet 
you  in  Washington,  where  I  purpose  to  be  as  usual  in  Janu 
ary. 

I  perceive  you  have  been  much  employed  in  dispatching  a 
batch  of  pirates.  I  trust  I  may  congratulate  you  on  having 
finished  it  to  your  own  satisfaction.  My  circuit  duties  are 
not  arduous,  and  will  terminate  this  week. 

You  will  perceive  that  our  House  of  Delegates  has  re- 
elected  their  Jackson  Speaker.  This,  however,  is  not  ab 
solutely  a  test  of  the  strength  of  parties.  The  decisive  bat 
tle  will  be  fought  on  the  election  of  a  Senator.  Both  parties 
appear  to  be  sanguine.  The  administration  has  undoubtedly  a 
majority  in  the  Senate, —  the  opposition  in  the  House  of  Dele 
gates.  We  are  insane  on  the  subject  of  the  Bank.  Its  friends, 
who  are  not  numerous,  dare  not,  a  few  excepted,  to  avow 
themselves.  You  will  perceive  by  the  message  of  our  Gov 
ernor  that  he  is  a  complete  nullifier  in  the  Georgia  sense  of 
the  term. 

I  conjecture  from  symptoms  in  the  papers  that  Mr.  Van 
Buren  gains  strength  in  Virginia.  This  opinion  is  founded 
on  the  fact  that  the  papers  in  his  interest  did  not  for  a  long 
time  allude  to  him  as  their  candidate.  They  emptied  their 
cup  of  malignant  calumny  on  every  other  person  who  was 
named  as  a  candidate,  hoping  by  the  destruction  of  others  to 
sustain  him.  They  now  begin  to  bring  him  forward.  This 
shows  that  in  their  opinion  he  is  stronger  than  he  was. 

I  anticipate  with  much  pleasure  our  meeting  at  Washing 
ton.  It  is  among  the  most  painful  of  the  emotions  excited 
by  the  prospect  of  leaving  public  life,  an  event  which  though 


154  THE  POLITICAL  AND  ECONOMIC 

not  intended  to  be  immediate  cannot  be  very  distant,  that  I 
shall  part  forever  from  friends  most  dear  to  me. 
I  am,  my  dear  Sir,  with  true  and  affectionate  esteem, 

Your, 
J.  MARSHALL. 

The  following  three  letters  were  written  by  John  Marshall 
to  General  Washington  during  the  time  when  Marshall  was 
in  Europe  upon  the  "  X  Y  Z  "  Mission.  It  is  interesting  to 
observe  the  impression  that  the  Europe  of  1797  and  1798 
made  upon  such  a  mind  as  that  of  Marshall.  The  text  of 
these  letters,  derived  first  from  the  transcripts  among  the 
Sparks  papers  in  the  Library  of  Harvard  University,  has  been 
carefully  compared  with  that  of  the  original  letters  among 
Washington  papers  in  the  Library  of  the  Department  of  State 
by  Mr.  S.  M.  Hamilton  of  that  library.  In  "  Washington's 
Writings,"  Ford  Edition,  XIII,  pp.  432-436,  will  be  found, 
under  date  of  December  4,  1797,  a  letter  from  General  Wash 
ington  in  reply  to  the  first  of  the  three  following  communica 
tions. 

THE  HAGUE,  i5th  Sept.  1797. 
DEAR  SIR 

The  flattering  evidences  I  have  receiv'd  of  your  favorable 
opinion,  which  have  made  on  my  mind  an  impression  only  to 
wear  out  with  my  being,  added  to  a  conviction  that  you  must 
yet  feel  a  deep  interest  in  all  that  concerns  a  country  to  whose 
service  you  have  devoted  so  large  a  portion  of  your  life,  in 
duce  me  to  offer  you  such  occasional  communications  as,  while 
in  Europe  I  may  be  enabled  to  make,  and  induce  a  hope  too 
that  the  offer  will  not  be  deemed  an  unacceptable  or  unwel 
come  intrusion. 

Until  our  arrival  in  Holland  we  saw  only  British  and  neu 
tral  vessels.  This  added  to  the  blockade  of  the  Dutch  fleet 
the  Texel,  of  the  French  fleet  in  Brest  and  of  the  Spanish  fleet 
in  Cadiz  manifests  the  entire  dominion  which  one  nation  at 
present  possesses  over  the  seas.  By  the  ships  of  war  which 
met  us  we  were  three  times  visited  and  the  conduct  of  those 
who  came  on  board  was  such  as  would  proceed  from  gen 
eral  orders  to  pursue  a  system  calculated  to  conciliate  Amer 
ica.  Whether  this  be  occasion'd  by  a  sense  of  justice  and 


DOCTRINES  OF  JOHN  MARSHALL          155 

the  obligation  of  good  faith,  or  solely  by  the  hope  that  the 
perfect  contrast  which  it  exhibits  to  the  conduct  of  France 
may  excite  keener  sensations  at  that  conduct,  its  effects  on  our 
commerce  are  the  same. 

The  situation  of  Holland  is  truly  interesting.  Tho  the 
face  of  the  country  still  exhibits  a  degree  of  wealth  and  popu 
lation  perhaps  unequalled  in  any  other  part  of  Europe,  its  de 
cline  is  visible.  The  great  city  of  Amsterdam  is  in  a  state 
of  blockade.  More  than  two  thirds  of  its  shipping  lie  unem 
ployed  in  port.  Other  seaports  suffer  tho  not  in  so  great  a 
degree.  In  the  meantime  the  requisitions  made  upon  them  are 
enormous.  They  have  just  completed  the  payment  of  100,- 
000,000  of  florins  (equal  to  40,000,000  of  dollars)  stipulated 
by  treaty,  they  have  sunk,  on  the  first  entrance  of  the  French 
a  very  considerable  sum  in  assignats;  they  made  large  contri 
butions  in  specifics ;  and  they  pay  feed  and  cloath  an  army  esti 
mated,  as  I  am  informed,  at  near  three  times  its  real  num 
ber.  It  is  supposed  that  France  has  by  various  means  drawn 
from  Holland  about  60,000,000  of  dollars.  This  has  been 
paid,  in  addition  to  the  national  expenditures,  by  a  popula 
tion  of  less  than  2,000,000.  Nor,  shou'd  the  war  continue, 
can  the  contributions  of  Holland  stop  here.  The  increasing 
exigencies  of  France  must  inevitably  increase  her  demands  on 
those  within  her  reach. —  Not  even  peace  can  place  Holland 
in  her  former  situation.  Antwerp  will  draw  from  Amster 
dam  a  large  portion  of  that  commerce  which  is  the  great  source 
of  its  wealth;  for  Antwerp  possesses,  in  the  existing  state  of 
things,  advantages  which  not  even  weight  of  capital  can  en 
tirely  surmount.  The  political  divisions  of  this  country  and 
its  uncertainty  concerning  its  future  destiny  must  also  have 
their  operation.  Independent  of  the  grand  division  between 
those  for  and  against  the  Stadtholder,  between  those  who  favor 
an  indivisible  and  those  who  favor  a  federal  republic,  there  is 
much  contrariety  of  opinion  concerning  the  essential  princi 
ples  of  that  indivisible  consolidated  republic  which  the 
influence  of  France  imposes  on  the  nation.  A  constitution 
which  I  have  not  read,  but  which  is  stated  to  me  to 
have  contain'd  all  the  great  fundamentals  of  a  representa 
tive  government,  and  which  has  been  prepared  with  in 
finite  labor,  and  has  experienc'd  an  uncommon  length  of  dis 
cussion  was  rejected  in  the  primary  assemblies  by  a  majority 


156  THE  POLITICAL  AND  ECONOMIC 

of  nearly  five  to  one  of  those  who  voted.  The  objections  do 
not  accompany  the  decision,  but  they  are  said  to  be  to  the 
duration  of  the  constitution  which  was  to  remain  five  years 
unaltered,  to  the  division  of  the  legislature  into  two  chambers, 
and  to  its  power  of  definitive  legislation,  the  substitute  wish'd 
for,  by  its  opponents,  is  a  legislature  with  a  single  branch  hav 
ing  power  only  to  initiate  laws  which  are  to  derive  their  force 
from  the  sanction  of  the  primary  assemblies.  I  do  not  know 
how  they  would  organize  their  executive,  nor  is  it  material 
how  they  would  organize  it.  A  constitution  with  such  a  legis 
lature  would  live  too  short  a  time  to  make  it  worth  the  while 
to  examine  the  structure  of  its  other  parts.  It  is  remarkable 
that  the  very  men  who  have  rejected  the  form  of  government 
propos'd  to  them  have  reelected  a  greater  majority  of  the 
persons  who  prepared  it  and  who  will  probably  make  from  it 
no  essential  departure.  Those  elected  are  now  assembled  in 
convention  at  this  place,  but  we  know  not  in  what  manner 
they  are  proceeding.  It  is  also  worthy  of  notice  that  more 
than  two  thirds  of  those  entitled  to  suffrage  including  per 
haps  more  than  four  fifths  of  the  property  of  the  nation,  and 
who  wish'd,  as  I  am  told  the  adoption  of  the  constitution  with 
held  their  votes  on  this  very  interesting  question.  Many  were 
restrained  by  an  unwillingness  to  take  the  oath  required  be 
fore  a  vote  cou'd  be  receiv'd ;  Many,  disgusted  with  the  pres 
ent  state  of  things,  have  come  to  the  unwise  determination  of 
revenging  themselves  on  those  whom  they  charge  with  having 
occasion'd  it  by  taking  no  part  whatever  in  the  politics  of  their 
country,  and  many  seem  to  be  indifferent  to  every  considera 
tion  not  immediately  connected  with  their  particular  employ 
ments. 

The  political  opinions  which  have  produc'd  the  rejection  of 
the  constitution,  and  which,  as  it  wou'd  seem,  can  only  be  en- 
tertain'd  by  intemperate  and  ill  inform'd  minds,  unaccustonrd 
to  a  union  of  the  theory  and  practice  of  liberty,  must  be  as 
sociated  with  a  general  system  which  if  brought  into  action 
will  produce  the  same  excesses  here  which  have  been  so  justly 
deplor'd  in  France.  The  same  material  exists  tho  not  in  so 
great  a  degree.  They  have  their  clubs,  they  have  a  numerous 
poor  and  they  have  enormous  wealth  in  the  hands  of  a  minor 
ity  of  the  nation.  On  my  remarking  this  to  a  very  rich  and 
intelligent  merchant  of  Amsterdam  and  observing  that  if  one 


DOCTRINES  OF  JOHN  MARSHALL  157 

class  of  men  withdrew  itself  from  public  duties  and  offices  it 
would  immediately  be  succeeded  by  another  which  wou'd  ac 
quire  a  degree  of  power  and  influence  that  might  be  exercis'd 
to  the  destruction  of  those  who  had  retired  from  society,  he 
replied  that  the  remark  was  just,  but  that  they  relied  on  France 
for  a  protection  from  those  evils  which  she  herself  had  expe 
rienced.  That  france  would  continue  to  require  great  sup 
plies  from  Holland  and  knew  its  situation  too  wrell  to  per 
mit  it  to  become  the  prey  of  anarchy.  That  Holland  was  an 
artificial  country  acquir'd  by  preserving  industry  and  which 
cou'd  only  be  preserved  by  wealth  and  order.  That  confusion 
and  anarchy  wou'd  banish  a  large  portion  of  that  wealth,  wou'd 
dry  up  its  sources  and  wou'd  entirely  disable  them  from  giving 
France  that  pecuniary  aid  she  so  much  needed.  That  under 
this  impression  very  many  who,  tho  friends  to  the  revolution 
saw  with  infinite  mortification  f  rench  troops  garrison  the  towns 
of  Holland,  wou'd  now  see  this  departure  with  equal  regret. 
Thus  they  willingly  relinquished  national  independence  for 
individual  safety.  What  a  lesson  to  those  who  wou'd  admit 
foreign  influence  into  the  United  States ! 

You  have  observ'd  the  storm  which  has  been  long  gather 
ing  in  Paris.  The  thunderbolt  has  at  length  been  launch'd 
at  the  heads  of  the  leading  members  of  the  legislature,  and 
has,  it  is  greatly  to  be  fear'd,  involved  in  one  common  ruin 
with  them,  the  constitution  and  liberties  of  their  country. 

The  inclos'd  papers  will  furnish  some  idea  of  a  transaction 
which  may  be  very  interesting  to  America  as  well  as  to  France. 
Complete  and  impartial  details  concerning  it  will  not  be  easily 
obtain'd,  as  the  press  is  no  longer  free.  The  journalists  who 
had  ventur'd  to  censure  the  proceedings  of  a  majority  of  the 
directory  are  seiz'd,  and  against  about  forty  of  them  a  sen 
tence  of  transportation  is  pronounced.  The  press  is  plac'd 
under  the  superintendence  of  a  police  appointed  by  and  de 
pendent  on  the  executive.  It  is  suppos'd  that  all  private  let 
ters  have  been  seiz'd  for  inspection. 

From  some  Paris  papers  it  appears,  that  on  the  first  alarm 
several  members  of  the  legislature  attempted  to  assemble  in 
their  proper  halls  which  they  found  clos'd  and  guarded  by  an 
armed  force.  Sixty  or  seventy  assembled  at  another  place 
and  began  to  remonstrate  against  the  violence  offer'd  against 
their  body  but  fear  soon  dispersed  them.  To  destroy  the  pos- 


158  THE  POLITICAL  AND  ECONOMIC 

sibility  of  a  rallying  point  the  municipal  administrations  of 
Paris  and  the  central  administration  of  the  Seine  were  im 
mediately  suspended  and  forbidden  by  an  arrete  of  the  di- 
rectoire  to  assemble  themselves  together.  Many  of  the  ad 
ministrators  of  the  departments  through  France  elected  by  the 
people,  had  been  previously  removed  and  their  places  filled  by 
persons  chosen  by  the  directory.  Moreau  who  commanded 
the  army  of  the  Sambre  and  the  Meuse  by  which  he  was  de 
servedly  loved  and  who  was  consider'd  as  attach'd  to  the 
fallen  party  was,  as  is  reported,  invited  from  his  army  to  Paris 
under  the  pretext  of  a  personal  consultation.  We  have  not 
heard  of  his  arrival  or  of  his  fate.  The  command  of  his 
army  during  his  absence  did  not,  we  learn,  devolve  on  the  old 
est  officer  but  was  given  to  Genl  Hoche  who  also  commands 
the  army  of  the  in  [mutilated]  Carnot  is  at  one  time  said  to 
have  been  kill'd  in  defending  himself  from  some  soldiers  who 
pursued  and  attempted  to  take  him,  at  another  time  he  is  said 
to  have  affected  his  escape.  The  fragment  of  the  legislature 
convok'd  by  the  directory  at  L'Odeon  and  L'ecole  de  sarite, 
hasten'd  to  repeal  the  law  for  organizing  the  national  guards, 
and  authoriz'd  the  directory  to  introduce  into  Paris  as  many 
troops  as  should  be  judged  necessary.  The  same  day  the  lib 
erty  of  the  press  was  abolish'd  by  a  line,  property  taken  away 
by  another  and  personal  security  destroy'd  by  a  sentence  of 
transportation  against  men  unheard  and  untried.  All  this  is 
stiled  the  triumph  of  liberty  and  of  the  constitution. 

To  give  a  satisfactory  statement  of  the  origin  and  progress 
of  the  contest  between  the  executive  and  legislative  depart 
ments  would  require  more  time  than  could  devoted  to  the 
subject,  did  I  even  possess  the  requisite  information,  and  to 
you,  Sir,  it  would  be  unnecessary  because  I  have  no  doubt  of 
your  having  receiv'd  it  through  other  channels.  I  shall  briefly 
observe  that  the  controversy  has  embrac'd  a  variety  of  inter 
esting  subjects.  Since  the  election  of  the  new  third,  there 
were  found  in  both  branches  of  the  legislature  a  majority 
in  favor  of  moderate  measures,  and,  apparently,  wishing  sin 
cerely  for  peace.  They  have  manifested  a  disposition  which 
threaten'd  a  condemnation  of  the  conduct  of  the  directory  to 
wards  America,  a  scrutiny  into  the  transactions  of  Italy,  par 
ticularly  those  respecting  Venice  and  Genoa,  an  inquiry  into 
the  disposition  of  public  money  and  such  a  regular  arrange- 


DOCTRINES  OF  JOHN  MARSHALL  159 

ment  of  the  finances  as  would  prevent  in  future  those  dilapi 
dations  which  are  suspected  to  have  grown  out  of  their  dis 
order. 

They  have  sought  too  by  their  laws  to  ameliorate  the  situa 
tion  of  those  whom  terror  had  driven  out  of  France,  and  of 
those  priests  who  had  committed  no  offense.  Carnot  and 
Bethelemy  two  of  the  directory  were  with  the  legislature. 

The  cry  of  conspiracy  to  reestablish  royalism  was  im 
mediately  rais'd  against  them.  An  envoy  was  despatched  to 
the  army  of  Italy  to  sound  its  disposition.  It  was  represented 
that  the  legislature  was  hostile  to  the  armies,  that  it  witheld 
their  pay  and  subsistence,  that  by  its  opposition  to  the  direc 
tory  it  encouraged  Austria  and  Britain  to  reject  the  terms  of 
peace  which  were  ofrer'd  by  France,  and  which  but  for  that 
opposition  would  have  been  accepted,  and  finally  that  it  had 
engag'd  in  a  conspiracy  for  the  destruction  of  the  constitu 
tion  and  the  republic  and  for  the  restoration  of  royalty.  At  a 
feast  given  to  the  armies  of  Italy  to  commemorate  their  fel 
low  soldiers  who  had  fallen  in  that  country  the  generals  ad- 
dress'd  to  them  their  complaints  plainly  spoke  of  marching  to 
Paris  to  support  the  directory  against  the  Council  and  re- 
ceiv'd  from  them  addresses  manifesting  the  willingness  of  the 
soldiers  to  follow  them.  The  armies  also  addressed  the  di 
rectory  and  each  other,  and  addresses  were  dispatched  to  dif 
ferent  departments.  The  directory  answered  them  by  the 
strongest  criminations  of  the  legislature.  Similar  proceed 
ings  were  had  in  the  army  of  the  interior  commanded  by  Genl 
Hoche.  Detachments  were  mov'd  within  the  limits  prohibited 
by  the  constitution,  some  of  which  declared  they  were  march 
ing  to  Paris  to  bring  the  legislature  to  reason.  Alarmed  by 
those  movements  the  council  of  five  hundred  call'd  on  the  direc 
tory  for  an  account  of  them.  The  movement  of  the  troops 
within  the  constitutional  circle  was  attributed  to  accident  and 
the  discontents  of  the  army  to  the  falts  committed  by  the  leg 
islature  who  were  plainly  criminated  as  conspirators  against 
the  army  and  the  republic.  The  message  was  taken  up  by 
Troncon  in  the  council  of  ancients  and  by  Thibideau  in  the 
council  of  five  hundred.  I  hope  you  have  seen  their  speeches. 
They  are  able,  and  seem  to  me  to  have  entirely  exculpated  the 
legislature.  In  the  meantime  the  directory  employ'd  itself 
in  the  removal  of  the  administrators  of  many  of  the  depart- 


160  THE  POLITICAL  AND  ECONOMIC 

ments  and  cantons  and  replacing  those  whom  the  people  had 
elected  by  others  in  whom  it  could  confide,  and  in  the  removal 
generally  of  such  officers  both  civil  and  military  as  could  be 
trusted  to  make  room  for  others  on  whom  it  could  rely.  The 
legislature  on  its  part,  passed  several  laws  to  enforce  the  con 
stitutional  restrictions  on  the  armies  and  endeavor'd  to  or 
ganize  the  national  guards.  On  this  latter  subject  especially 
Pichegru  great  and  virtuous  I  believe  in  the  cabinet  as  in  the 
field,  was  indefatigable.  We  understand  that  the  day  before 
the  law  for  their  organization  would  have  been  carried  into 
execution  the  decisive  blow  was  struck. 

To  support  the  general  charge  of  a  conspiracy  in  favor  of 
royalty  I  know  of  no  particular  facts  alleg'd  against  the  ar 
rested  members  except  Pichegru  and  two  or  three  others.  An 
abridgment  of  the  paper  constituting  the  whole  charge  against 
Pichegru  will  be  found  in  the  inclos'd  supplement.  I  have 
seen  the  paper  at  full  length.  The  story  at  large  is  still  more 
improbable  than  its  abridgment  because  Pichegru  is  made  in 
the  first  moment  of  conversation  to  unbosom  himself  entirely 
to  a  perfect  stranger  who  had  only  told  him  that  he  came  from 
the  Prince  of  Conde  and  could  not  exhibit  a  single  line  or 
testimonial  of  any  sort  to  prove  that  he  had  ever  seen  the 
Prince  or  that  he  was  not  a  spy  employ'd  by  some  of  the 
enemies  of  the  General. 

This  story  is  repelled  by  Pichegru's  character  which  has 
never  been  defiled.  Great  as  were  the  means  he  possess'd  of 
personal  aggrandizement  he  returned  clean  handed  from  the 
army  without  adding  a  shilling  to  his  private  fortune.  It  is 
repel'd  by  his  resigning  the  supreme  command,  by  his  num 
erous  victories  subsequent  to  the  alleged  treason,  by  its  own 
extreme  absurdity  and  by  the  fear  which  his  accusers  show 
of  bringing  him  to  trial  according  to  the  constitution  even  be 
fore  a  tribunal  they  can  influence  and  overawe,  or  of  even 
permitting  him  before  that  prostrate  body  which  is  still  term'd 
the  legislature  and  which  in  defiance  of  the  constitution  has 
pronounc'd  judgment  on  him.  Yet  this  improbable  and  un 
supported  tale  seems  to  be  received  as  an  established  truth  by 
those  who,  the  day  before  his  fall  bow'd  to  him  as  an  idol. 
I  am  mortified  as  a  man  to  learn  that  even  his  old  army  which 
conquered  under  him,  which  adored  him,  which  partook  of 
his  fame  and  had  heretofore  not  join'd  their  brethren  in  ac- 


DOCTRINES  OF  JOHN  MARSHALL          161 

cusing  the  legislature,  now  unite  in  bestowing  on  him  the 
heaviest  execrations  and  do  not  hesitate  to  pronounce  him  a 
traitor  of  the  deepest  dye. 

Whether  this  conspiracy  be  real  or  not,  the  wounds  inflicted 
on  the  constitution  by  the  three  directors  seem  to  me  to  be 
mortal.  In  opposition  to  the  express  regulations  of  the  con 
stitution  the  armies  have  deliberated,  the  results  of  their  de 
liberations  addressed  to  the  directory  has  been  favorably  re 
ceived,  and  the  legislature  since  the  revolution  has  super- 
added  its  thanks.  Troops  have  been  march'd  within  those 
limits  which  by  the  constitution  they  are  forbidden  to  enter 
but  on  the  request  of  the  legislature. 

The  directory  is  forbidden  to  arrest  a  member  of  the  legis 
lature  unless  in  the  very  commission  of  a  criminal  act  and 
then  he  can  only  be  tried  by  the  high  court,  on  which  oc 
casion  forms  calculated  to  protect  his  person  from  violence  or 
the  prejudice  of  the  moment  are  carefully  prescribed.  Yet  it 
has  seiz'd  by  a  military  force  about  fifty  leading  members  not 
taken  in  a  criminal  act  and  has  not  pursued  a  single  step 
mark'd  out  by  the  Constitution. 

The  councils  can  inflict  no  penalty  on  their  own  members 
other  than  reprimand,  arrest  for  eight  and  imprisonment  for 
three  days.  Yet  they  have  banished  to  such  place  as  the  di 
rectory  shall  choose  a  large  portion  of  their  body  without  the 
poor  formality  of  hearing  a  defence. 

The  legislature  shall  not  exercise  any  judiciary  power  or 
pass  any  retrospective  law.  Yet  it  has  pronounc'd  this  heavy 
judgment  on  others  as  well  as  its  own  members  and  has  taken 
from  individuals  property  which  the  law  had  vested  in  them. 

The  members  of  the  directory  are  personally  secur'd  by  the 
same  rules  with  those  of  the  legislature.  Yet  three  directors 
have  deprived  two  o'f  their  places,  the  legislature  has  thus  ban 
ished  [them]  without  a  hearing  and  has  proceeded  to  fill  up 
the  alleg'd  vacancies.  Merelin  late  minister  of  justice  and 
Francois  de  Neufchatel  have  been  elected. 

The  constitution  forbids  the  house  of  any  man  to  be  en- 
ter'd  in  the  night.  The  orders  of  the  constituted  authorities 
can  only  be  executed  in  the  day.  Yet  many  of  the  members 
were  seized  in  their  beds. 

Indeed  Sir  the  constitution  has  been  violated  in  so  many 
instances  that  it  would  require  a  pamphlet  to  detail  them.  The 


1 62  THE  POLITICAL  AND  ECONOMIC 

detail  would  be  unnecessary  for  the  great  principle  seems  to 
be  introduc'd  that  the  government  is  to  be  administer'd  ac 
cording  to  the  will  of  the  armies  and  not  according  to  the  will 
of  the  nation. 

Necessity,  the  never  to  be  worn  out  apology  for  violence,  is 
alleged  —  but  could  that  necessity  go  further  than  to  secure 
the  persons  of  the  conspirators  ?  Did  it  extend  to  the  banish 
ment  of  the  printers  to  the  slavery  of  the  press?  If  such  a 
necessity  did  exist  it  was  created  by  the  disposition  of  the 
people  at  large,  and  it  is  a  truth  which  requires  no  demonstra 
tion  that  if  a  republican  form  of  government  cannot  be  ad 
ministered  by  the  general  will,  it  cannot  be  administered  against 
that  will  by  an  army. 

After  all,  the  result  may  not  be  what  is  apprehended. 
France  possesses  such  enormous  power,  such  a  vast  popula 
tion  that  she  may  possibly  spare  another  million  and  preserve 
or  reacquire  her  liberty.  Or,  the  form  of  the  Government  be 
ing  preserv'd,  the  independence  of  the  legislature  may  be 
gradually  recovered. 

With  their  form  of  government  or  revolutions  we  have 
certainly  no  right  to  intermeddle,  but  my  regrets  at  the  pres 
ent  state  of  things  are  increased  by  an  apprehension  that  the 
rights  of  our  country  will  not  be  deemed  so  sacred  under  the 
existing  system,  as  they  would  have  been  had  the  legislature 
preserved  its  legitimate  authority. 

Genl  Pickney  (with  whom  I  cannot  but  be  very  well  pleased) 
[and  I]  have  waited  impatiently  for  Mr  Gerry  and  shall  wait 
until  Monday  the  i8th  inst.  On  that  day  we  set  sail  for 
Paris. 

The  negotiations  with  Austria  and  Britain  are  still  pend 
ing  and  are  of  very  uncertain  issue. 

This  letter  has  extended  itself  to  an  unexpected  length.     I 
have  fatigued  you,  Sir  and  will  only  add  that  I  remain 
with  sincere  and  respectful  attachment 

Your  Obedt  Servt 

J.  MARSHALL. 

I  just  now  learn  that  fifteen  hundred  persons  have  been 
arrested  at  Lyons.  That  resistance  is  made  at  Avignon  and 
that  Massina  is  marching  to  quell  it. 


DOCTRINES  OF  JOHN  MARSHALL  163 

PARIS,  October  24th,  1797. 
DEAR  SIR 

I  did  myself  the  honor  of  addressing  to  you  from  the  Hague 
by  Capt  Izzard,  a  very  long  letter  which  I  hope  you  have  re- 
ceiv'd.  The  offer  therein  made  of  occasionally  communicating 
to  my  observations  of  the  great  and  interesting  events  of  eu- 
rope  was  not  even  entitled  to  the  small  value  which  in  my  own 
mind  I  had  bestowed  upon  it.  Causes  which  I  am  persuaded 
you  have  anticipated,  forbid  me  to  allow  myself  that  free  range 
of  thought  and  expression  which  could  alone  apologize  for  the 
intrusive  character  my  letters  bear.  Having  however  offer'd 
what  I  cannot  furnish,  I  go  on  to  substitute  something  else  per 
haps  not  worth  receiving. 

You  have  heard  it  said  in  the  United  States  that  the  agricul 
ture  of  France  has  in  the  course  of  the  present  war  been  consid 
erably  improved.  On  this  subject  I  am  persuaded  there  has 
been  no  exaggeration.  In  that  part  of  the  country  through 
which  I  have  passed  the  evidences  of  plenty  abound.  The 
whole  earth  appears  to  be  in  cultivation  and  the  harvests  of 
the  present  year  appear  to  be  as  productive  as  the  fields  which 
yield  them  are  extensive.  I  am  inform'd  that  every  part  of  the 
country  exhibits  the  same  aspect.  If  this  be  a  fact,  there  will 
probably  remain,  notwithstanding  the  demands  of  the  armies,  a 
surplus  of  provisions.  Manufactures  have  declined  in  the 
same  ratio  that  the  cultivation  of  the  soil  has  increas'd.  War 
has  been  made  upon  the  great  manufacturing  towns  and  they 
are  in  a  considerable  degree  destroy'd.  With  manufactures 
France  does  not  supply  herself  fully  from  her  internal  re 
sources.  Those  of  Britain  flow  in  upon  her  notwithstanding 
the  most  severe  prohibitory  laws.  The  port  of  Rotterdam  is 
purposely  left  open  by  the  English  and  their  goods  are  im 
ported  by  the  Dutch  under  Prussian  and  other  neutral  colors. 
They  are  smuggl'd  in  great  quantities  into  France.  Peace  then 
will  find  this  nation  entirely  competent  to  the  full  supply  of 
her  colonies  with  provisions  and  needing  manufactures  to  be 
imported  for  her  own  consumption.  This  state  of  things  will 
probably  change;  but  it  is  unquestionably  the  state  of  things 
which  will  exist  at,  and  for  some  time  after,  the  termination  of 
the  present  war.  France  can  take  from  America  tobacco  and 
raw  cotton,  she  can  supply  us  with  wines,  brandies,  and  silks. 


1 64  THE  POLITICAL  AND  ECONOMIC 

The  papers  which  I  transmitted  to  you  contain'd  the  evi 
dence  on  which  were  founded  the  transactions  of  the  i8th 
fructidor  or  4th  of  September.  Since  then  a  letter  has  been 
published  bearing  the  signature  of  Gen  Moreau  and  produced 
as  an  unequivocal  testimonial  of  the  treason  alleg'd  to  have 
existed.  You  will  have  seen  the  letter  and  have  made  upon  it 
your  own  comments,  but  you  will  be  astonished  to  hear  that 
perhaps  a  majority  of  the  people  do  not  believe  that  Moreau 
ever  wrote  it. 

The  existing  political  state  of  France  is  connected  with 
certain  internal  and  powerfully  operating  causes  by  which  it 
has  been  and  will  continued  to  be  greatly  influenc'd.  Not  the 
least  of  these  is  the  tenure  by  which  property  is  held. 

In  the  course  of  the  revolution  it  is  believ'd  that  more  than 
half  of  the  land  of  France  has  become  national.  Of  this  a  very 
considerable  proportion  has  been  sold  at  a  low  rate.  It  is  true 
that  much  of  this  property  formerly  belong'd  to  the  church,  but 
it  is  also  true  that  much  of  it  belong'd  to  those  who  have  fallen 
under  the  Guillotine  or  have  been  termed  emigrants.  Among 
the  emigrants  are  many  whose  attachment  to  their  country 
has  never  been  shaken ;  and  what  is  remarkable,  among  them 
are  many  who  were  never  out  of  France.  The  law  upon  this 
subject  is  worthy  of  attention.  Any  two  persons  no  matter 
what  their  reputation,  may,  to  some  authority,  I  believed  the 
municipality  of  the  district,  write  and  subscribe  against  any 
person  whatever  a  charge,  that  such  person  is  an  emigrant,  on 
receipt  of  which  the  person  so  charged  is  without  further  in 
vestigation  inscribed  on  the  list  of  emigrants.  If  the  person 
so  inscribed  be  afterwards  apprehended  while  his  name  re 
mains  on  the  list ;  the  trial,  as  I  understand,  is,  not  of  the  fact 
of  emigration,  but  of  the  identity  of  the  person,  and  if  this 
identity  be  established,  he  is  instantly  fusilleered.  This  law 
is  either  rigidly  executed  or  permitted  to  be  relax'd,  as  the 
occasion  or  the  temper  of  the  times  may  direct. 

During  intervals  of  humanity  some  disposition  has  been 
manifested  to  permit  the  return  of  those  who  have  never 
offended,  who  have  been  banished  by  a  terror  which  the  gov 
ernment  itself  has  reprobated,  and  to  permit  in  cases  of  ar- 
restation,  an  investigation  of  the  fact  of  emigration  as  well  as 
of  the  identity  of  the  person  accused. 

There  is  too  a  great  deal  of  property  which  has  been  sold  as 


DOCTRINES  OF  JOHN  MARSHALL  165 

national  but  which  in  truth  was  never  so,  and  which  may  be 
reclaimed  by  the  original  proprietors. 

In  this  state  of  things  the  acquirers  of  national  property  are 
of  course  extremely  suspicious.  They  form  a  vast  proportion 
of  the  population  of  France.  They  are  not  only  important  in 
consequence  of  their  numbers,  but  in  consequence  of  their 
vigor,  their  activity  and  that  unity  of  interest  which  produces  a 
unity  of  effort  among  them.  The  armies  too  have  been 
promised  a  milliard.  This  promise  rests  upon  the  national 
property  for  its  performance.  The  effect  of  these  circum 
stances  cannot  escape  your  observation.  Classes  of  citizens 
are  to  be  disfranchis'd  against  the  next  elections.  ^ 

Our  ministers  have  not  yet,  nor  do  they  seem  to  think  it 
certain  that  they  will  be,  receiv'd.  Indeed  they  make  arrange 
ments  which  denote  an  expectation  of  returning  to  America  im 
mediately.  The  captures  of  our  vessels  seem  to  be  only  limited 
by  the  ability  to  capture.  That  ability  is  increasing,  as  the 
government  has  let  out  to  hardy  adventurers  the  national 
frigates.  Among  those  who  plunder  us,  who  are  most  active 
in  this  infamous  business,  and  most  loud  in  vociferating  crimi 
nations  equally  absurd  and  untrue,  are  some  unprincipled 
apostates  who  were  born  in  America.  These  sea  rovers  by  a 
variety  of  means  seem  to  have  acquir'd  great  influence  in  the 
government.  This  influence  will  be  exerted  to  prevent  an 
accommodation  between  the  United  States  and  France,  and  to 
prevent  any  regulations  which  may  intercept  the  passage  of 
the  spoils  they  have  made  on  our  commerce,  to  their  pockets. 
The  government  I  believe  is  but  too  well  disposed  to  promote 
their  views.  At  present  it  seems  to  me  to  be  radically  hostile 
to  our  country.  I  coud  wish  to  form  a  contrary  opinion  but 
to  do  so  I  must  shut  my  eyes  on  every  object  which  presente 
itself  to  them,  and  fabricate  in  my  own  mind  non  existing 
things,  to  be  substituted  for  realities,  and  to  form  the  basis 
of  my  creed.  Might  I  Be  permitted  to  hazard  an  opinion  it 
would  be  that  the  Atlantic  only  can  save  us,  and  that  no  con 
sideration  will  be  sufficiently  powerful  to  check  the  extremities 
to  which  the  temper  of  this  government  will  carry  it,  but  an 
apprehension  that  we  may  be  thrown  into  the  arms  of  Britain. 

The  negotiations  with  the  Emperor  are  said  not  to  have 
been  absolutely  broken  off.  Yesterday  it  was  said  that  peace 
with  him  was  certain.  Several  couriers  have  arriv'd  lately 


166          THE  POLITICAL  AND  ECONOMIC 

from  Bonaparte  and  the  national  debt  rose  yesterday  from 
seven  to  ten  livres  in  the  hundred.  Whether  this  is  founded 
on  a  real  expectation  of  peace  with  Austria  or  is  the  mere  work 
of  stock  jobbers  is  not  for  me  to  decide.  We  are  told  that 
Mantua  is  no  longer  the  obstacle  of  peace  that  it  is  surrendered 
by  the  Emperor  and  that  the  contest  now  is  for  Istria  and 
Dalmatia. 
October  27th.—- 

The  definitive  peace  is  made  with  the  Emperor.  You  will 
have  seen  the  conditions.  Venice  has  experienced  the  fate  of 
Poland  England  is  threatened  with  an  invasion. 

PARIS,  march  8th  1798 
DEAR  SIR 

Before  this  reaches  you  it  will  be  known  universally  in 
America,  that  scarcely  a  hope  remains  of  accommodating  on 
principles  consistent  with  justice,  or  even  with  the  indepen 
dence  of  our  country,  the  differences  subsisting  between  France 
and  the  United  States.  Our  ministers  are  not  yet,  and  it  is 
known  to  all  that  they  will  not  be  recogniz'd  without  a  pre 
vious  stipulation  on  their  part,  that  they  will  accede  to  the 
demands  of  France.  It  is  as  well  known  that  those  demands 
are  for  money  —  to  be  used  in  the  prosecution  of  the  present 
war.  It  was,  some  little  time  past  expected,  that,  convinc'd 
of  the  impracticability  of  effecting  the  objects  of  their  mission, 
our  ministers  were  about  to  demand  their  passports  and  to 
return  to  the  United  States, —  but  this  determination  if  ever 
made  is,  I  am  persuaded,  suspended  if  not  entirely  relinquish'd. 
The  report  has  been  that  so  soon  as  it  shall  be  known  that 
they  will  not  add  a  loan  to  the  mass  of  American  property  al 
ready  in  the  hands  of  this  government  they  will  be  order' d  out 
of  France  and  a  nominal  as  well  as  actual  war  will  be  com- 
menc'd  against  the  United  States.  My  opinion  has  always 
been  that  this  depends  on  the  state  of  the  war  with  England. 
To  that  object  the  public  attention  is  very  much  turn'd,  and 
it  is  perhaps  justly  believed  that  on  its  issue  is  staked  the  inde 
pendence  of  Europe  and  America.  The  preparations  for  an 
invasion  are  immense.  A  numerous  and  veteran  army  lines 
the  coast,  and  it  is  said  confidently  that  if  the  landing  of  50,000 
men  can  be  effected,  no  force  in  England  will  be  able  to  resist 
them.  The  often  repeated  tale  that  the  war  is  made  not  against 


DOCTRINES  OF  JOHN  MARSHALL  167 

the  people  but  the  government,  maintains,  in  spite  of  experience 
some  portion  of  its  credit,  and  it  is  believ'd  here  that  a  formi 
dable  and  organiz'd  party  exists  in  Britain  ready,  so  soon  as  a 
landing  shall  be  effected,  to  rise  and  demand  a  reform.  It  is 
supposed  that  England  revolutioniz'd  under  the  protection  of  a 
french  army  will  be  precisely  in  the  situation  of  the  batavian 
and  Cisalpine  Republics  and  that  its  wealth,  its  commerce,  and 
its  fleets  will  be  at  the  disposition  of  this  government.  In  the 
meantime  this  expedition  is  not  without  its  hazards.  An 
army  which  arriving  safe  would  sink  England  may  itself  be 
encountered  and  sunk  in  the  channel.  The  effect  of  such  a 
disaster  on  a  nation  already  tir'd  of  the  war  and  groaning 
under  the  pressure  of  an  enormous  taxation,  which  might  dis 
cern  in  it  the  seeds  of  another  coalition,  and  which  perhaps  may 
not  be  universally  attach'd  to  existing  arrangements,  might 
be  extremely  serious  to  those  who  hold  the  reins  of  govern 
ment. 

It  is  therefore  believed  by  many  who  do  not  want  intelligence 
that  these  formidable  military  preparations  cover  and  favor 
secret  negotiations  for  peace.  It  is  rumored  (but  this  is  mere 
rumor)  that  propositions  have  been  made  to  England  to  cede 
to  her  the  possessions  of  Portugal  in  America,  in  consideration 
of  her  restoring  the  conquests  she  has  made  on  France  Spain 
and  Holland  and  of  her  consent  that  Portugal  in  Europe  shall 
be  annexed  to  the  Spanish  monarchy.  This  report  is  derived 
from  no  source  in  any  degree  to  be  relied  on,  and  is  supported 
by  no  circumstance  rendering  it  in  any  degree  probable  other 
than  the  existing  disposition  for  partitioning  and  disposing  of 
empires.  I  am  however  persuaded  that  some  secret  negotia 
tion  with  England  is  now  on  the  tapis.  I  know  almost  certainly 
that  a  person  high  in  the  confidence  of  this  government,  who  is 
frequently  employed  in  unofficial  negotiation  has  passed  over 
into  that  island.  We  can  only  conjecture  his  objects. 

You  probably  know  that  the  affairs  of  Rastadt  are  sub 
stantially  decided.  The  Emperor  and  the  King  of  Prussia 
have  declared  themselves  in  favor  of  ceding  to  France  the 
whole  territory  on  the  left  of  the  rhine  on  the  principle  of 
compensation  in  the  interior  of  Germany.  This  would  seem 
to  me  to  take  from  England  the  hope  of  once  more  arming 
Austria  and  Prussia  in  her  favor,  for  certainly  had  those 
powers  contemplated  such  an  event  they  would  not  have  effected 


1 68  THE  POLITICAL  AND  ECONOMIC 

the  pacification  of  the  empire.  This  circumstance  will  probably 
influence  the  secret  negotiations  with  England.  It  will  probably 
too  very  much  influence  the  affairs  of  Swisserland.  The  de 
termination  of  France  to  revolutionize  the  helvetic  body  has 
been  long  known.  In  the  pais  de  vaud  belonging  to  the  Can 
ton  of  Berne  this  revolution  has  commenced  and  is  completely 
effected  under  the  protection  and  guidance  of  a  french  army 
for  which  that  little  country  has  already  paid  about  800,000 
livres  Swiss.  France  has  insisted  on  extending  the  revolu 
tion  throughout  Swisserland.  The  existing  governments  in 
some  of  the  cantons  and  especially  in  Bern  declare  their  willing 
ness  to  reorganize  their  constitution  on  the  base  of  an  equality 
of  rights  and  a  free  representation,  but  they  protest  against 
foreign  interposition  and  against  a  revolutionary  intermediate 
government.  In  support  of  this  resolution  they  have  collected 
all  their  force  and  most  of  the  cantons  which  have  already 
changed  their  form  of  government  have  furnished  their  con 
tingents.  The  mass  of  the  people  in  Bern  are  firmly  united 
and  seem  to  join  the  government  in  saying  that  they  will  to  the 
last  man  bury  themselves  under  the  ruins  of  the  country  rather 
than  submit  to  the  intermeddling  of  the  foreigners  in  the  for 
mation  of  their  constitutions.  Such  is  the  present  truly  inter 
esting  state  of  Swisserland.  A  powerful  military  force  is 
advancing  upon  them  and  at  the  same  time  it  is  said  that  the 
negotiations  are  to  be  opened.  The  terms  offered  however  are 
supposed  to  be  such  as  if  accepted  will  place  that  country  in 
the  same  situation  as  if  conqured.  A  revolutionary  govern 
ment  is  insisted  on. 

The  Swiss  have  observed  an  exact  neutrality  throughout  the 
late  war  on  the  continent  and  have  ever  since  the  peace  sought 
to  preserve  the  forbearance  of  France  by  concessions  not  per 
fectly  compatible  with  the  rights  of  an  independent  nation. 

On  the  side  of  Italy  it  is  believ'd  that  materials  are  pre 
paring  to  revolutionize  Sardinia  and  Naples. 

Some  jealosies  exist  with  respect  to  Spain.  Augereau  has 
been  ordered  some  time  since  to  Perpignan  a  position  from 
which  he  may  with  advantage  overawe  that  monarchy,  invade 
Portugal  or  preserve  order  in  the  south  during  the  ensuing 
elections.  It  is  the  common  opinion  that  shoud  the  elections  in 
any  respect  disappoint  the  wishes  of  the  directory  it  will  be  on 
the  side  of  Jacobinism.  The  existing  government  appears  to 


DOCTRINES  OF  JOHN  MARSHALL  169 

me  to  need  only  money  to  enable  it  to  effect  all  its  objects.  A 
numerous  brave  and  well  disciplined  army  seems  to  be  devoted 
to  it.  The  most  military  and  the  most  powerful  nation  on 
earth  is  entirely  at  its  disposal.  Spain  Italy  and  Holland  with 
the  Hanseatic  towns  obey  its  mandates.  Yet  there  is  a  diffi 
culty  in  procuring  funds  to  work  this  vast  machine.  Credit 
being  annihilated  the  actual  impositions  of  the  year  must  equal 
the  disbursements.  The  consequence  is  that  notwithstanding 
the  enormous  contributions  made  by  foreign  nations  France  is 
overwhelmed  with  taxes.  The  proprietor  complains  that  his 
estate  yields  him  nothing.  Real  property  pays  in  taxes  nearly 
a  third  of  its  produce  and  is  greatly  reduc'd  in  its  price.  The 
patriotic  gifts  for  the  invasion  of  Ehgland  to  which  men  have 
been  stimulated  by  all  possible  means  have  not  exceeded  by  the 
highest  calculation  100,000  livres.  This  is  the  amount  stated 
by  a  person  who  charges  the  officers  of  the  treasury  with  pec 
ulation.  The  treasury  admits  65,000  livres.  It  is  supposed 
that  recourse  will  be  had  to  a  forc'd  loan  and  that  the  neigh 
bors  of  the  republic  will  be  required  to  contribute  still  further 
to  its  wants.  A  very  heavy  beginning  has  been  made  with 
Rome. 
March  loth. — 

The  papers  announce  that  the  troops  of  France  and  Swisser- 
land  have  had  some  severe  encounters  in  which  those  of  the 
latter  have  been  worsted  and  the  French  entered  Fribourg 
and  Soluere.  Report  (which  as  yet  wants  confirmation  and 
indeed  is  disbelieved)  also  says  that  Berne  has  submitted. 

LETTER  TO  GEORGE  WASHINGTON 

RICHMOND,  July  nth.  1796. 
SIR  : 

I  will  not  attempt  to  express  those  sensations,  which  your 
letter  of  the  8th  instant  has  increased.  Was  it  possible  for  me 
in  the  present  crisis  of  my  affairs  to  leave  the  United  States, 
such  is  my  conviction  of  the  importance  of  that  duty,  which  you 
would  confide  to  me,  and  (pardon  me  if  I  add)  of  the  fidelity 
with  which  I  should  attempt  to  perform  it,  that  I  would  cer 
tainly  forego  any  consideration  not  decisive  with  respect  to 
future  fortunes,  and  would  surmount  that  just  diffidence  I 
have  ever  entertained  of  myself,  to  make  an  effort  to  convey 


1  70  THE  POLITICAL  AND  ECONOMIC 

truly  and  faithfully  to  the  government  of  France  those  senti 
ments,  which  I  have  ever  believed  to  be  entertained  by  that  of 
the  United  States. 

I  have  forwarded  your  letter  to  Mr.  Pinckney.  The  recall 
of  our  minister  at  Paris  has  been  conjectured,  while  its  prob 
able  necessity  has  been  regretted  by  those,  who  love  more  than 
all  others  our  own  country.  I  will  certainly  do  myself  the 
honor  of  waiting  on  you  at  Mount  Vernon. 

With  every  sentiment  of  respect  and  attachment, 

I  am,  &c. 

J.  MARSHALL. 

The  above  letter  is  in  reply  to  the  following  letter  from 
Washington,  which  is  labelled  "  Private,"  and  which  is  printed 
in  "Washington's  Writings,"  by  Jared  Sparks,  Vol.  XI, 
P- 


MOUNT  VERNON,  8  July,  1796. 
DEAR  SIR, 

In  confidence  I  inform  you,  that  it  has  become  indispensably 
necessary  to  recall  our  minister  at  Paris,  and  to  send  one  in  his 
place,  who  will  explain  faithfully  the  views  of  this  govern 
ment,  and  ascertain  those  of  France. 

Nothing  would  be  more  pleasing  to  me,  than  that  you  should 
be  this  organ,  if  it  were  only  for  a  temporary  absence  of  a  few 
months  ;  but,  it  being  feared,  that  even  this  could  not  be  made 
to  comport  with  your  present  pursuits,  I  have,  in  order  that  as 
little  delay  as  possible  may  be  incurred,  put  the  enclosed  letter 
under  cover,  to  be  forwarded  to  its  address,  if  you  decline  the 
present  offer,  or  to  be  returned  to  me  if  you  accept  it.  Your 
own  correct  knowledge  of  circumstances  renders  details  un 
necessary.  I  shall  only  add,  therefore,  that  I  am,  dear  Sir,  &c. 

GEORGE  WASHINGTON. 

PHILADELPHIA,  Jany  i6th,  1800. 
SIR 

Accept  my  sincere  thanks  for  a  copy  of  the  oration  delivered 
at  New  Rochelle  on  the  ist  of  Jany.  which  has  reached  me 
today. 

I  have  read  it  with  that  melancholy  pleasure  which  is  in 
spired  by  well  merited  &  well  executed  eulogies  on  those  whose 


DOCTRINES  OF  JOHN  MARSHALL  171 

deaths  we  greatly  lament,  &  whose  memory  is  most  dear  to  us. 
To  the  friends  of  the  departed  patriot  whose  talents  &  vir 
tues  you  have  valiantly  &  so  justly  celebrated,  &  to  the  friends 
of  the  American  character,  the  deep  &  universal  grief  which 
has  been  every  where  manifested,  &  the  impressive  orations 
which  have  flowed  from  that  grief,  constitute  some  consolation 
for  the  irreparable  loss  our  country  has  sustained. 
With  very  much  respect 

I  am  Sir  your  obedt.  Servt. 

J.  MARSH  ALL.5  9a 

Marshall's  conception  of  the  judicial  character  placed  the 
office  where  it  should  be,  on  the  highest  plane  of  morals,  and 
served  in  tempestuous  times  to  maintain  the  dignity  and  power 
of  his  court  in  the  estimation  of  all  fair-minded  lawyers. 

Mr.  Jay,  the  first  Chief  Justice  of  the  United  States,  on  his 
first  circuit  had  declined  the  numerous  invitations  of  his  friends 
to  reside  with  them,  saying,  in  delicate  terms  to  one  of  his 
friends :  "  As  a  man,  and  your  friend,  I  should  be  happy  in 
accepting  it,  but  as  a  judge  I  have  my  doubts  —  they  will  occur 
to  you  without  details. " 

In  1834  Marshall  received  an  invitation  to  attend  a  public 
dinner  given  at  Petersburg,  Virginia,  in  honor  of  Mr.  Leigh, 
which  he  declined  in  the  following  letter,  addressed  to  the  com 
mittee  : 

RICHMOND,  October  6,  1834. 
GENTLEMEN  — 

I  have  received  your  polite  and  flattering  invitation  to  the 
dinner  to  be  given  to  Mr.  Leigh  by  his  friends  in  Petersburg,  on 
the  1 5th  of  this  month.  United,  as  I  have  long  been  with  that 
gentleman,  by  ties  of  personal  friendship,  and  feeling  as  I  do 
the  highest  respect  for  his  talents  and  character,  I  should  make 
a  point  of  manifesting  these  sentiments  by  accepting  your  kind 
invitation,  were  I  not  restrained  by  considerations  which  have 
uniformly  influenced  my  conduct;  and  which  I  do  not  think 

59»  The  above  letter  was  found  in  "  Homes  of  American  Statesmen,  with 
Anecdotal,  Personal,  and  Descriptive  Sketches  by  Various  Authors.  Illus 
trated  with  engravings  on  wood,  from  drawings  by  Dopier  and  Daguerre 
otypes  :  and  Fac-similes  of  Autograph  Letters."  New  York,  Alfred  W. 
Upham,  1860,  pp.  274-276.  No  information  to  show  to  whom  this  letter 
was  sent  can  be  found. 


172  THE  POLITICAL  AND  ECONOMIC 

myself  at  liberty  to  disregard.  I  have  always  believed,  and 
acted  on  the  opinion,  that  the  delicacy  belonging  to  my  peculiar 
official  situation,  ought  to  prevent  my  engaging  in  the  political 
conflicts  of  the  day.  I  could  not  yield  to  the  inclination  I  feel 
to  show  my  grateful  sense  of  the  partial  kindness  expressed  in 
your  letter  of  invitation,  without  affording  at  least  the  appear 
ance  of  departing  from  a  rule  which  has  been  prescribed  by  a 
conviction  of  its  propriety.  I  am  therefore  compelled  to  deny 
myself  the  pleasure  of  participating  in  the  festivities  of  the 
occasion ;  wishing  you,  gentlemen,  and  those  you  represent, 
all  the  happiness  you  expect, 

I  remain  your  obliged  and  obedient  servant, 

J.    MARSHALL.60 

To  MESSRS.  GEORGE  W.  HARRIS  AND  OTHERS. 


LETTER  01  FROM  JOHN  MARSHALL  TO 
GEORGE  WASHINGTON 

RICHMOND,  May  ist,  99 
DEAR  SIR 

You  may  possibly  have  seen  a  paragraph  in  a  late  publica 
tion,  stating  that  several  important  offices  in  the  gift  of  the 
executive,  &  among  others  that  of  secretary  of  state,  had  been 
attainable  by  me.  Few  of  the  unpleasant  occurrences  produced 
by  my  declaration  as  a  candidate  for  congress  (&  they  have 
been  very  abundant)  have  given  me  more  real  chagrin  than 
this.  To  make  a  parade  of  proffered  offices  is  a  vanity  which 
I  trust  I  do  not  possess,  but  to  boast  of  the  never  in  my  power 
would  argue  a  littleness  of  mind  at  which  I  ought  to  blush. 

I  know  not  how  the  author  may  have  acquired  his  informa 
tion,  but  I  beg  leave  to  assure  you  that  he  never  received  it 
directly  nor  indirectly  from  me.  I  had  no  previous  knowledge 
that  such  a  publication  was  designed,  or  I  would  certainly  have 
suppressed  so  much  of  it  as  relates  to  this  subject. 

The  writer  was  unquestionably  actuated  by  a  wish  to  serve 
me  &  by  resentment  at  the  various  malignant  calumnies  that 
have  meen  so  profusely  bestowed  on  me.  One  of  these  was 
that  I  only  wished  a  seat  in  Congress  for  the  purpose  of  ob- 

60  The  above  letter  is  printed  in  the  "  Niles  Register,"  1834,  and  in  the 
American  Law  Review,  Vol.  XXII,  p.  711. 

61  On  the  other  side  of  this  letter  is  written  in  Washington's  handwrit 
ing,  "  From  General  Marshall,  ist  May,  1799." 


DOCTRINES  OF  JOHN  MARSHALL  173 

taining  some  office  which  my  devotion  to  the  administration 
might  procure.  To  repel  this  was  obviously  the  motive  of 
the  indiscreet  publication  I  so  much  regret. 

A  wish  to  rescue  myself  in  your  opinion  from  the  imputa 
tion  of  an  idle  vanity  which  forms  if  I  know  myself,  no  part 
of  my  character,  will  I  trust  apologize  for  the  trouble  this  ex 
planation  may  give  you. 

Messrs  Goode  &  Gray  who  are  the  successors  of  Messrs 
Clarborne  &  Harrison  are  both  Federalists.  Mr.  Hancock 
who  opposed  Mr.  Tris  will,  to  our  general  disappointment  not 
succeed.  At  least  such  is  our  present  information.  Should 
Haywood  or  Preston  be  elected  the  Virginia  delegation  will 
stand  ten  in  opposition  to  the  government's  nine  in  support 
of  it. 

Parties,  I  hear  will  not  be  so  nearly  balanced  in  our  state 
legislature.     With  the  most  respectful  attachment 
I  remain  Sir,  your  Obedt  Servt 

J.  MARSHALL. 

LETTER  FROM  JOHN  MARSHALL  TO  GEORGE  WASHINGTON 

RICHMOND,  May  i6th  1799. 
DEAR  SIR 

Neither  Col.  Carrington  nor  Col.  Heth  are  now  in  town.  So 
soon  as  they  arrive  your  letter  of  the  I2th  inst.  with  its  inclo- 
sures,  will  be  communicated  to  them.  I  wish  it  may  be  in  our 
power  to  furnish  any  useful  information  on  the  subjects  in 
quired  into. 

Returns  of  all  the  elections  have  been  received.  The  failure 
of  Col.  Hancock  &  of  Major  Haywood  was  unexpected  &  has 
[not  clear]  us  to  sight  in  the  legislature  of  the  Union. 

In  the  State  elections  very  considerable  changes  have  been 
made.  There  are  from  fifty  to  sixty  new  members.  Unfor 
tunately,  the  strength  of  parties  is  not  materially  varied.  The 
opposition  maintains  its  majority  in  the  house  of  Delegates. 
The  consequence  must  be  an  anti  federalist  Senator  &  Gov 
ernor.  In  addition  to  this  the  baneful  influence  of  a  legisla 
ture  hostile  perhaps  to  the  Union  —  or  if  not  so, —  to  all  its 
measures  will  yet  be  kept  up. 

If  it  be  true  that  France  has  declared  war  against  Austria,  it 
will  be  now  apparent  that  it  would  have  been  wise  to  have  at- 


174  THE  POLITICAL  AND  ECONOMIC 

tempted  the  relief  of  Ehrenbreitstein  &  the  preservation  of 
Naples  &  Sardinia.  Even  this  instructive  lesson  will  probably 
make  no  impression  on  the  nations  of  Europe  or  the  people  of 
America. 

With  the  utmost  respect  &  attachment, 
I  am  Sir,  your  Obed't  Serv't, 

J.  MARSHALL. 

LETTER  FROM  JOHN  MARSHALL  TO  GEORGE  WASHINGTON 

RICHMOND,  June  i2th  99. 
DEAR  SIR 

Your  letter  of  the  6th  inst.  which  came  by  the  last  mail  was 
communicated  to  Col.  Carrington  &  would  have  been  shown 
also  to  Col.  Heth  had  he  been  within  our  immediate  reach. 

Col.  Croppin  is  a  man  of  fair  character  correct  politics  & 
unquestionable  courage.  No  doubt  can  be  entertained  of  his 
fitness  for  the  command  of  a  regiment  nor  should  I  have  hesi 
tated  to  transmit  him  immediately  your  letter,  but  for  one  con 
sideration  produced  by  his  former  military  .station.  He  was 
in  our  late  army  a  Lieut.  Col.  &  he  performed  the  duties  of  that 
office  with  reputation.  It  is  probable  that  he  may  feel  wounded 
at  being  offered  the  same  grade  under  others  whom  he  thus 
commanded  &  who  are  perhaps  in  nothing  his  superiors.  It  is 
presumed  that  officers  in  the  actual  army  will  command  those 
of  the  same  grade  in  the  eventual  army.  If  you  are  correct 
in  this  then  Colonels  Bentley  &  Parker  who  were  bothe  sub 
alterns  when  Col.  Croppin  was  a  field  officer,  &  who  are  not 
supposed  to  have  manifested  any  superiority  over  him,  will 
now  take  rank  of  him.  The  former  relative  rank  of  offibers 
ought  certainly  not  to  be  the  rule  which  should  positively  decide 
their  present  rank.  But  among  gentlemen  in  other  respects 
equal  it  is  difficult  entirely  to  lose  sight  of  it.  It  is  suggested 
by  Col.  Carrington  that  if  the  eventful  army  shall  be  called  into 
actual  service  Brigadiers  General  will  necessarily  be  appointed 
from  Virginia  &  he  has  supposed  that  Genl.  Clarke  &  Col. 
Croppin,  to  whom  I  will  take  the  liberty  of  adding  Genl  Posey, 
would  be  proper  persons  to  contemplate  for  the  station. 

For  this  single  reason  Col.  Carrington  &  myself  deemed  it 
advisable  to  detain  your  letter  to  Col.  Croppin  until  your 
further  directions  can  be  reviewed.  Should  you  still  incline 


DOCTRINES  OF  JOHN  MARSHALL          175 

to  transmit  it  to  him,  we  trust  the  delay  will  produce  no  incon 
venience. 

Col.  [name  not  clear]  who  resides  in  the  county  of  Bedford, 
was  in  the  late  war  brigade  Major  to  Genl  Muhlenberg.  He  is 
a  man  of  considerable  energy  of  character.  His  activity  & 
courage  recommend  him  as  a  military  man,  but  those  who  know 
him  best  suppose  him  better  fitted  for  the  command  of  a  bat 
talion  than  of  a  regiment.  It  is  probable  that  he  would  accept 
a  majority  under  a  man  he  could  respect,  sufficiently  respect  to 
serve  under  without  mortification.  Col.  James  Breckenbridge 
of  [not  clear]  although  never  heretofore  in  service  is  believed 
to  possess  many  excellent  qualities  as  a  soldier,  to  which  he 
adds  a  weight  of  character  which  would  I  think  induce  Col. 
Munnis  to  be  content  with  a  majority  of  his  regiment.  To  the 
appointment  of  Col.  Breckenbridge  there  would  be  this  objec 
tion.  It  would  take  him  out  of  the  State  Legislature  where  he 
is  a  valuable  &  influential  member. 

Genl  Porterfield  of  Augusta  is  in  every  respect  proper  for 
the  command  of  a  regiment. 

Genl.  Blackwell  of  Fauquier  was  a  Captain  in  the  late  army 
&  in  my  opinion,  one  of  our  most  valuable  officers.  He  is  a 
cool  steady  sensible  &  brave  man  whose  conduct  is  always 
correct  &  who  would  in  my  opinion  command  a  regiment  with 
reputation  to  himself  &  advantage  to  his  country. 

Col  Swearingen  of  Berkley  was  also  a  captain  in  the  late 
army  &  maintains  a  very  high  reputation.  I  am  not  personally 
acquainted  with  him  but  Cols  Carrington  &  Heth  are  &  they 
speak  highly  of  him. 

I  do  not  immediately  recollect  any  others  among  the  old  offi 
cers  whom  I  could  name  for  so  high  an  office  as  the  command  of 
a  regiment.  I  am  aware  that  those  I  have  mentioned  cannot 
should  you  on  further  enquiry  approve  of  them,  be  all  ap 
pointed,  but  I  have  named  them  because  it  is  possible  that  those 
first  applied  to  may  be  disinclined  to  enter  into  the  Army. 

Virginia  has  sustained  a  very  serious  loss  which  all  good  men 
will  long  lament,  in  the  death  of  Mr.  Henry.  He  is  said  to 
have  expired  on  Thursday  last.  The  intelligence  is  not  abso 
lutely  certain  but  scarcely  a  hope  is  entertained  of  its  untruth. 
With  the  most  respectful  attachment 

I  remain  Sir,  your  obt  Servt. 

J.  MARSHALL. 


176  THE  POLITICAL  AND  ECONOMIC 

LETTER  FROM  JOHN  MARSHALL  TO  GEORGE  WASHINGTON 

RICHMOND,  June  2ist  99. 
DEAR  SIR 

An  accidental  absence  from  town  prevented  my  returning 
by  the  last  mail  the  inclosed  letter. 

I  am  extremely  happy  that  the  liberty  we  have  taken  to  sus 
pend  its  transmission  to  Col  Cropper  has  not  displeased  you. 

Your  second  letter  to  that  gentleman  is  just  received  &  will 
be  immediately  put  in  the  post  office  with  a  proper  direction. 
With  the  most  perfect  respect  &  attachment 

I  remain  Sir  your  obedt  Servt 

J.  MARSHALL. 

LETTER  FROM  JOHN  MARSHALL  TO  JAMES  MONROE 

RICHMOND  July  i3th  1825. 
DEAR  SIR. 

I  am  greatly  flattered  by  your  letters  of  the  29th  of  June 
accompanying  the  documents  stating  your  claims  on  the  United 
States. 

There  was  undoubtedly  great  reason  for  your  requesting 
such  a  final  settlement  of  all  your  accounts  as  would  relieve  you 
from  future  disquiet ;  and  in  making  that  settlement  you  have  I 
think  a  right  to  expect  that  the  justice  of  your  country  will  not 
be  stinted  by  any  implied  concession  made  under  circumstances 
when  it  could  not  be  with  held.  I  can  perceive  no  reason  why 
you  should  not  receive  as  much  as  has  ever  been  allowed  to 
others  for  similar  services;  and  I  trust  this  reasonable  expec 
tation  will  not  be  disappointed. 

With  the  sincerest  wishes  for  your  health  and  happiness  and 
with  high  and  respectful  esteem 

I  am  dear  Sir, 

Your  obedt 

J.  MARSHALL. 

LETTER  FROM  JOHN  MARSHALL  TO  GEORGE  WASHINGTON 
^ 

PHILADELPHIA  July  7th.  97. 

SIR. 

I  have  had  the  pleasure  of  receiving  from  Mr.  Pickering 
your  letter  to  me  inclosing  others  for  France  intrusted  to  my 
care,  to  the  delivery  of  which  I  shall  be  particularly  attentive. 


DOCTRINES  OF  JOHN  MARSHALL  177 

Receive  Sir  my  warm  &  grateful  acknowledgments  for  the 
polite  &,  allow  me  to  add,  friendly  wishes  which  you  express 
concerning  myself  as  well  as  for  the  honor  of  being  mentioned 
in  your  letter. 

I  expect  to  embark  in  the  course  of  the  next  week  in  the 
Grace  for  Amsterdam  there  to  join  Genl  Pinckney,  &  thence  to 
proceed  if  we  be  permitted  to  proceed  to  Paris.  Mr.  Gerry, 
if  he  accepts  the  appointment,  which  is  not  yet  certain,  he 
having  requested  some  short  time  for  deliberation,  will  follow, 
Claypole's  paper  by  the  mail  of  today  exhibits  the  case  of  M. 
Blount.  Opinions  here  are  as  various  on  this  subject  as  on 
every  other  —  not  with  respect  M.  Blount  —  all  concur  in 
giving  him  up,  but  with  respect  to  the  object  of  the  scheme, 
:he  means  of  execution  &  the  degree  of  crime  or  indiscretion 
attached  to  different  foreign  ministers.  It  is  by  some  conjec- 
:ured  that  M  Blount  himself  gave  to  the  Spanish  minister  the 
intelligence  on  which  was  founded  his  application  to  the  gov 
ernment  of  the  United  States. 

I  remain  Sir  with  the  most  respectful  attachment 

Your  Obedt  Servt.  J.  MARSHALL. 

LETTER  FROM  JOHN  MARSHALL  TO  GEORGE  WASHINGTON 

PHILADELPHIA,  June  22d  98. 
DEAR  SIR 

Your  letter  to  Genl  Dumas  was  delivered  by  me  to  his  lady 
from  whom  in  consequence  of  it  I  received  during  my  stay  in 
Paris  the  most  polite  and  flattering  attention.  She  delivered 
me  the  enclosed  answer  which  was  written  in  Copenhagen  & 
forwarded  to  her. 

Having  heard  that  Mrs  Marshall  is  in  Westchester  I  hope 
immediately  to  set  out  for  that  place. 

Permit  me  to  acknowledge  the  receipt  of  your  very  polite 
&  obliging  letter  in  answer  to  that  which  I  did  myself  the  honor 
to  address  to  you  from  the  Hague.  I  had  not  Sir  expected  to 
draw  you  into  a  correspondence  which  might  intrude  on  your 
leisure  but  merely  to  do  myself  the  pleasure  of  communicating 
to  you  occasionally  such  facts  as  it  might  be  agreeable  to  you 
to  receive. 

With  the  most  sincere  respect  &  attachment 

I  remain  Sir  your  Obedt  Servt. 

J.  MARSHALL. 


1 78  THE  POLITICAL  AND  ECONOMIC 

LETTER  FROM  JOHN  MARSHALL  TO  JAMES  MADISON 

RICHMOND  November  29.  1790 
DEAR  SIR: 

My  friend  Mr.  Giles  will  present  you  this —     He  is  partic 
ularly  desirous  of  being  known  to  you.     I  should  not  presume 
so  far  on  the  degree  of  your  acquaintance  with  which  I  have 
been  honored  as  to  introduce  any  gentleman  to  your  attention 
if  I  did  not  persuade  myself  that  you  will  never  regret  or 
change  any  favorable  opinion  you  may  form  of  him. 
With  much  respect  &  esteem 
I  am  dear  Sir 

Your  obedt  Servt 
J.  MARSHALL. 

LETTER  FROM  JOHN  MARSHALL  TO  JAMES  MONROE 

RICHMOND,  June  25th  1812. 
DEAR  SIR. 

On  my  return  today  from  my  farm  where  I  pass  a  consider 
able  portion  of  my  time  in  laborious  relaxation,  I  found  a 
copy  of  the  message  of  the  President  of  ist  inst.  accompanied 
by  the  report  of  the  committe  of  foreign  relations  &  the  declara 
tion  of  war  against  Britain  [not  clear]. 

Permit  me  to  subjoin  to  my  thanks  for  this  mark  of  your 
attention  my  fervent  wish  that  this  momentous  measure  may,  in 
its  operation  on  this  interest  of  honor  of  our  country,  disap 
point  only  its  enemies. 

Whether  my  prayer  be  heard  or  not  I  shall  remain  with  re 
spectful  esteem 

Your  obedt  Servt. 

J.  MARSHALL. 

LETTER  FROM  JOHN  MARSHALL  TO  JAMES  MONROE 

WASHINGTON  March  7th  1825. 
DEAR  SIR. 

Permit  me  to  ask  your  acceptance  of  our  colonia  history 
which  is  offered  as  a  mark  of  the  affectionate  revolutions  ex 
cited  in  the  bosom  of  the  author  when  he  looks  back  to  times 
long  since  gone  by. 

In  the  momentous  and  then  unlocked  for  events  which  have 
since  taken  place,  you  have  filled  a  large  space  in  the  public 


DOCTRINES  OF  JOHN  MARSHALL  179 

mind,  and  have  been  conspicuously  instrumental  in  effecting 
objects  of  great  interest  to  our  common  country.  Believe  me 
when  I  congratulate  you  on  the  circumstances  under  which  your 
political  course  terminates,  and  that  I  feel  sincere  pleasure  in 
the  persuasion  that  your  administration  may  be  reviewed  with 
real  approbation  by  our  wisest  statesmen. 

With  great  respect  &  esteem 

I  am  dear  Sir 

Your  obedt 
J.  MARSHALL. 

LETTER  FROM  JOHN  MARSHALL  TO  JAMES  MONROE 

RICHMOND  June  13.  1822. 
SIR. 

I  have  received  the  copy  of  your  message  to  Congress  on 
the  subject  of  internal  improvements  which  you  did  me  the 
honor  to  transmit  me  and  thank  you  for  it.  I  have  read  it 
with  great  attention  and  interest. 

This  is  a  question  which  very  much  divides  the  opinions  of 
intelligent  men ;  and  it  is  not  to  be  expected  that  there  will  be 
an  entire  concurrence  in  that  you  have  expressed.  All  how 
ever  will  I  think  admit  that  your  views  are  profound  and  that 
you  have  thought  deeply  on  the  subject.  To  me  they  appear 
to  be  most  generally  just. 

A  general  power  over  internal  improvements,  if  to  be  exer 
cised  by  the  Union  would  certainly  be  cumbersome  to  the 
government,  &  of  no  utility  to  the  people.  But  to  the  extent 
you  recommend,  it  would  be  productive  of  no  mischief,  and  of 
great  good. 

I  despair  however  of  the  adoption  of  such  a  measure. 
With  great  respect  and  esteem 
I  am  Sir,  your  Obedt  Servt 
J.  MARSHALL. 

LETTER  FROM  JOHN  MARSHALL  TO  JAMES  MONROE 

RICHMOND  December  9.  1823. 
DEAR  SIR. 

I  received  yesterday  the  message  of  the  President  to  Con 
gress,  franked  by  yourself.  Allow  me  to  express  the  grateful 
sentiment  with  which  I  acknowledge  this  mark  of  polite  atten- 


180  THE  POLITICAL  AND  ECONOMIC 

tion,  and  this  wide  use  of  your  recollection  of  times  which  are 
long  passed  away.     I  shall  not  forget  it. 

I  have  read  with  interest  and  attention  the  comprehensive 
views  which  you  have  taken  of  our  affairs,  and  think  with  you 
that  we  cannot  look  on  the  present  state  of  the  world  with 
indifference. 

With  great  respect  and  esteem 

I  remain  your  obedt 

J.  MARSHALL. 

LETTER  FROM  JOHN  MARSHALL  TO  JAMES  MONROE 

RICHMOND  Dec.  i3th  1824. 
SIR 

I  am  indebted  to  your  polite  attention  for  a  copy  of  your 
message  to  Congress  and  am  much  gratified  by  this  mark  of 
your  recollection. 

While  I  take  the  liberty  to  express  my  personal  regrets  that 
your  retirement  approaches  so  nearly,  and  that  circumstances 
are  supposed  to  forbid  your  continuing  to  afford  your  services 
to  your  country.  I  may  be  permitted  to  congratulate  you  on 
the  auspicious  circumstances  which  have  attended  your  course 
as  Chief  Magistrate  of  the  United  States,  and  which  crown 
its  termination.  You  may  look  back  with  pleasure  to  several 
very  interesting  events  which  have  taken  place  during  your 
administration,  and  have  the  rare  felicity  not  to  find  the  retro 
spect  darkened  by  a  single  spot  the  reviewer  of  which  ought 
to  pain  yourself  or  your  fellow  citizen. 

With  great  &  respectful  esteem 

I  remain  your  obedt 

J.  MARSHALL. 

LETTER  FROM  JOHN  MARSHALL  TO  JAMES  MONROE 

RICHMOND  July  30.  1826. 
DEAR  SIR. 

I  have  had  the  pleasure  of  receiving  your  letter  recommend 
ing  Mr.  Randall  to  the  vacant  office  in  the  clerkship  of  the 
Supreme  Court.  I  trust  I  need  not  say  that  there  is  no  person 
whose  recommendation  contains  more  influence  with  me  than 
yours.  I  feel  the  utmost  confidence  in  the  merit  of  this  gentle 
man,  and  that  this  office,  should  he  receive  the  appointment 


DOCTRINES  OF  JOHN  MARSHALL  181 

will  be  well  bestowed.     To  myself  personally,  though  I  am  not 
acquainted  with  him,  it  will  be  far  from  [not  clear]. 

I  have  never  in  my  life  been  required  to  perform  a  more 
painful  duty  than  making  this  appointment.  In  addition  to 
the  numbers  &  great  respectability  of  the  applicants,  a  circum 
stance  which  of  itself  would  create  sufficient  difficulty  in  making 
a  selection,  the  list  exhibits  many  of  my  highly  valued  personal 
friends,  and  the  sons  of  others  with  whom  I  have  been  con 
nected  by  ties  of  close  affection  &  esteem.  I  cannot  point  to 
one  without  looking  at  others,  who  must  be  excluded,  with 
extreme  regret.  Among  those  too  who  have  supported  indi 
vidual  and  of  course  opposing  candidates,  are  the  most  valued 
friends  I  have  in  the  world.  In  this  to  me  new  as  well  as  a 
distressing  situation.  I  have  made  no  positive  determination, 
but  have  uniformly  said  that  a  clerk  must  be  appointed,  and 
that  some  sacrifice  of  individual  preference  must  be  made  to 
effect  this  necessary  object.  That  under  this  conviction,  I 
shall  go  into  the  election  prepared  to  support  that  one  of  the 
many  I  could  wish  to  appoint  Who  can  unite  a  sufficient  num 
ber  of  votes  to  secure  an  appointment.  I  shall  feel  much  more 
chagrined  at  being  compelled  to  pass  by  10  manly  deserving 
men  to  whom  I  feel  the  best  disposition.  Than  of  pleasure  at 
giving  my  voice  in  favor  of  the  successful  candidate.  I  hope 
you  are  not  in  danger  of  famine  from  the  drought  as  many  of 
us  are.  With  great  respectful  esteem 

I  am  dear  Sir,  your  Obedt 
J.  MARSHALL. 

Letter  from  John  Marshall  and  Andrew  Ronold  to  Thomas 
Jefferson.  Their  opinion  that  Farrell  and  Jones  have  a  legal 
claim  against  Randolph  and  Wayler.  This  letter  is  in  Manu 
script  Division  of  Library  of  Congress,  Series  6,  Vol.  3,  No.  86. 

April  i,  1791. 

We  are  decidedly  of  opinion  that  if  any  engagement  relative 
to  the  consignment  of  a  Gumeaman  to  Randolph  &  Wayler 
was  entered  into  subsequent  to  the  receipt  of  Mr.  Wayler  s  let 
ter  of  the  I4th  of  May  1772,  That  Messrs  Parrel  &  Jones  have 
a  good  claim  on  the  writer  of  that  letter  for  indemnity. 

ist  April  1791. 
ANDREW  RONOLD 
J.  MARSHALL. 


1 82  THE  POLITICAL  AND  ECONOMIC 

Letter  from  John  Marshall  to  Thomas  Jefferson.  This  letter 
is  plainly  dated  "  March  4th,  1781."  But  1781  must  be  wrong, 
for  on  the  other  side  of  the  letter  is  written  in  Jefferson's  hand : 
"'March  4th,  1801.  Marshall  John." 

March  4th  1781. 
[corrected  1801] 
SIR. 

I  have  received  your  letter  requesting  me  to  perform  the 
duties  of  Secretary  of  State  until  a  successor  be  appointed.     I 
shall  with  great  pleasure  obey  this  request  &  beg  leave  to  assure 
you  that  I  am  with  high  &  respectful  consideration 
Your  obedt  Humble  Servt. 

J.  MARSHALL. 

Letter  from  John  Marshall  to  Thomas  Jefferson.  This  letter 
is  in  Series  6,  Vol.  6,  No.  8,  Manuscript  Division  of  Library  of 
Congress.  It  is  labeled  as  having  been  dated  probably  1797. 

J.  Marshall  begs  leave  to  accompany  his  respectful  compli 
ments  to  Mr.  Jefferson  with  assurance  of  the  regret  he  feels  at 
being  absent  when  Mr.  Jefferson  did  him  the  honor  to  call  on 
him. 

J.  Marshall  is  extremely  sensible  to  the  obliging  expression 
contained  in  Mr.  Jefferson's  polite  billet  of  yesterday. 

He  sets  out  tomorrow  for  Winchester  &  would  with  pleasure 
charge  himself  with  any  commands  from  Mr.  Jefferson  to  that 
part  of  Virginia. 

(On  the  back  is  written  "  Marshall  John.") 

LETTER  FROM  JOHN  MARSHALL  TO  THOMAS  JEFFERSON 

WASHINGTON  March  2.  1801. 
SIR. 

I  am  this  instant  honored  with  yours  of  today.  Not  being 
the  Secretary  of  State,  &  only  performing  the  duties  of  that 
office  at  the  request  of  the  President,  the  request  becomes 
indispensably  necessary  to  give  validity  to  any  act  which  pur 
ports  to  be  done  on  the  4th  of  March. 

In  the  confidence  that  it  will  be  viewed  I  shall  immediately 
proceed  to  sign  the  sea  letters.  No  form  is  prescribed.  Any 
letter  desiring  me  to  do  the  duties  of  the  office  generally  on  the 
4th  of  March  will  be  sufficient. 


DOCTRINES  OF  JOHN  MARSHALL  183 

I  shall  with  much  pleasure  attend  to  administer  the  oath  of 
office  on  the  4th  &  shall  make  a  point  of  being  punctual.  The 
records  of  the  office  of  the  department  of  state  furnish  no  in 
formation  respecting  the  oaths  which  have  been  heretofore 
taken.  That  prescribed  in  the  constitution  seems  to  me  to  be 
the  only  one  which  is  to  be  administered.  I  will  however  en 
quire  what  has  been  the  practice. 

The  chief  clerk  of  this  department  will  attend  you  at  the 
time  requested 

I  have  the  honor  to  be  with  great  respect  Sir 

Your  most  obedt  hble  servt 

J.  MARSHALL. 

LETTER  FROM  JOHN  MARSHALL  TO  JOHN  AMBLER,  ESQ., 
OF  NEAR  WILLIAMSBURG,  VA. 

PHILADELPHIA  Dec.  2Qth  99. 

DEAR  SIR. 

Receive  our  sincere  congratulations  on  your  marriage  & 
our  wishes  for  the  happiness  of  Mrs.  Ambler  and  yourself. 
We  have  at  this  place  no  news  but  what  is  contained  in  the 
public  papers.  They  will  show  you  the  manner  in  which  we 
have  manifested  our  deep  affection  for  the  loss  of  Genl  Wash 
ington.  Never  was  mourning  more  universal  or  so  generally 
sincere. 

Nothing  of  very  serious  importance  has  yet  come  before 
Congress.  The  material  business  of  the  session  is  preparing 
in  the  committees.  I  hope  a  mutual  spirit  of  toleration  and 
forbearance  will  succeed  to  the  violence  which  seemed  in  too 
great  a  degree  to  govern  last  year.  As  far  as  I  can  judge 
from  present  appearances  this  will  be  a  temperate  session  & 
I  wish  most  devoutly  that  the  prevalence  of  moderation  here 
may  diffuse  the  same  spirit  among  our  fellow  citizens  at 
large. 

In  the  State  of  Pennsylvania  there  appears  to  be  a  consid 
erable  degree  of  exasperation  among  parties.  The  new  Gov 
ernor  has,  it  is  said,  greatly  increased  it  by  turning  or  threaten 
ing  to  turn  out  of  office  every  man  however  respectable  & 
well  qualified,  who  voted  against  him.  I  am  told  that  every 
clerk  in  the  state  is  removed.  The  clerks  here,  who  are  [not 
clear],  hold  their  offices  during  the  pleasure  of  the  Governor. 


1 84  THE  POLITICAL  AND  ECONOMIC 

This  is  a  very  irritating  measure  &  will  koop  up  in  a  consider 
able  degree  that  party  use  for  which  this  state  has  been  long  so 
remarkable. 

Molly  joins  me  in  compliments  to  Mr.  Ambler. 
I  am  dear  Sir  with  much  regard 

Your  Obedt 
J.  MARSHALL. 

LETTER  62  FROM  J.  MARSHALL  TO  DANIEL  WEBSTER 

RICHMOND,  June  6,  1832. 
MY  DEAR  SIR  : 

I  thank  you  very  sincerely  for  the  copy  with  which  you  have 
favored  me  of  your  speeches  on  the  bill  for  renewing  the 
charter  of  the  Bank  of  the  United  States.  I  need  not  say 
that  I  consider  an  accommodation  of  the  tariff  question  itself 
as  scarcely  more  interesting  to  our  country  than  the  passage  of 
that  bill.  Your  argument  presents  the  subject  in  its  strongest 
point  of  view,  and  to  me  seems  unanswerable.  Mr.  Ritchie, 
in  his  Inquirer,  informs  the  people  of  Virginia  that  Mr.  Taze- 
well  has  refuted  you  completely.  This  he  may  have  done  in 
opinion  of  Mr.  Ritchie.  I  have  not  seen  Mr.  Tazewell's 
speech,  and  do  not  understand  from  The  Inquirer  whether  his 
refutation  applies  to  your  speech  in  favor  of  the  bill  or  to  that 
against  the  amendment  offered  by  Mr.  Moor.  By  the  way, 
your  argument  against  that  amendment  is  founded  in  an  idea 
which  to  me  is  quite  novel.  I  had  often  heard  it  advanced 
that  the  States  have  no  constitutional  power  to  establish  banks 
of  circulation,  but  never  that  Congress  might  not  introduce 
into  the  charter  a  restraining  principle,  which  might  prohibit 
branches  altogether,  or  require  the  assent  of  a  State  to  their 
introduction,  or  a  principle  which  might  subject  them  to  State 
taxation.  This  may  be  considered  not  as  granting  power  of 
taxation  to  a  State,  for  a  State  possesses  that  power;  but  as 
withdrawing  a  bar  which  the  constitution  opposes  to  the  ex 
ercise  of  this  power  over  a  franchise  created  by  Congress  for 
national  purposes,  unless  the  constitution  of  the  franchise  in 
its  creation  has  this  quality  engrafted  on  it.  I  however  am 
far  from  undertaking  to  dissent  from  your  proposition;  I 
only  say  it  is  new,  and  I  ponder  on  it. 
62  "Private  Correspondence  of  Daniel  Webster,"  Vol.  I,  pp.  518-519. 


DOCTRINES  OF  JOHN  MARSHALL  185 

With  great  and  respectful  esteem,  I  am  your  obedient  serv 
ant, 

J.  MARSHALL. 

P.  S.  I  only  meant  to  express  my  obligation  for  your  at 
tention,  and  I  have  betrayed  myself  into  the  politics  of  the  day. 

LETTER  63  FROM  CHIEF  JUSTICE  MARSHALL  TO 
DANIEL  WEBSTER 

RICHMOND,  April  3,  1826. 

DEAR  SIR  : 

I  had  the  pleasure  of  receiving  a  few  days  past,  under  cover 
from  you,  the  documents  accompanying  the  late  message  of 
the  President  to  the  House  of  Representatives  on  the  Panama 
mission.  We  anticipate  a  tolerably  animated  discussion  of 
this  subject.  I  thank  you  very  sincerely  for  this  mark  of 
polite  recollection,  and  beg  you  to  believe  that  I  remain  with 
sincere  regard, 

Yours, 
J.  MARSHALL. 

LETTER**  FROM  CHIEF  JUSTICE  MARSHALL  TO 
DANIEL  WEBSTER 

RICHMOND,  May  20,  1826. 

DEAR  SIR, —  I  returned  yesterday  from  North  Carolina,  and 
had  the  pleasure  of  finding  your  speech  on  the  mission  to  Pan 
ama,  under  cover  from  yourself.  I  had  previously  read  it  with 
deep  interest,  but  was  not  on  that  account  the  less  gratified 
at  this  polite  mark  of  your  attention.  I  can  preserve  it  more 
certainly  in  a  pamphlet  form,  than  in  that  of  a  newspaper. 

Whatever  doubts  may  very  fairly  be  entertained  respecting 
the  policy  of  the  mission,  as  an  original  measure,  I  think  it 
was  not  involved  in  much  difficulty  when  considered  as  it 
came  before  the  House  of  Representatives. 

I  congratulate  you  on  closing  a  most  laborious  session,  and 
am  with  great  and  respectful  esteem, 

Your  obedient  servant, 

J.  MARSHALL. 

63  "  Private  Correspondence  of  Daniel  Webster,"  Vol.  I,  p.  405. 

64  "  Ibid.,  pp.  406-407. 


1 86  THE  POLITICAL  AND  ECONOMIC 

LETTER  «•  FROM  CHIEF  JUSTICE  MARSHALL  TO 
DANIEL  WEBSTER 

January  23,  1831. 
DEAR  SIR  : 

I  have  just  received  the  copy  of  you  "  Speeches  and  Foren 
sic  Arguments,"  and  am  much  flattered  by  this  mark  of  your 
attention.  I  beg  you  to  present  my  compliments  to  Mrs.  Web 
ster;  and  to  say  that  I  think  myself,  in  part,  indebted  to  her 
for  it.  At  all  events,  she  has,  I  perceive,  had  some  agency  in 
conferring  the  favor. 

I  shall  read  the  volume  with  pleasure,  and  preserve  it  with 
care. 

Will  you  allow  me  to  say  that,  on  looking  over  the  con 
tents,  I  felt  at  the  first  moment  some  disappointment  at  not 
seeing  two  speeches  delivered  by  you  in  the  first  Congress,  I 
believe,  of  which  you  were  a  member. 

With  great  and  respectful  esteem, 

I  am,  your  obedient, 

J.  MARSHALL. 

One  of  the  first  acts  of  Mr.  Webster  on  entering  Congress 
was  to  introduce  certain  resolutions  calling  upon  the  Executive 
for  information  respecting  the  time  and  mode  in  which  the 
repeal  of  the  French  Decrees  had  been  communicated  to  our 
Government.  As  this  whole  matter  stood  before  the  public 
at  the  time  of  the  declaration  of  war,  it  appeared  that  our 
Government  had  been  deceived  by  the  French  Ministry,  or 
that  they  were  in  possession  of  a  repealing  decree  when  the 
war  was  declared,  and  had  withheld  it ;  for  no  such  degree  had 
made  its  appearance  until  after  the  declaration  had  passed 
through  Congress.  Mr.  Webster  considered  that  the  reputa 
tion  of  this  country  was  at  stake  in  this  affair,  because  the 
French  foreign  secretary  had  declared  to  the  American  Min 
ister  at  Paris,  on  the  ist  of  May,  1812,  that  a  copy  of  the  re 
pealing  decree  had  been  furnished  to  his  predecessor,  and 
that  another  had  been  transmitted  to  the  French  Minister  at 
Washington  at  the  time  of  its  date,  which  was  April  28,  1811. 
Mr.  Webster,  therefore,  for  the  purpose  of  eliciting  all  the 
facts,  and  in  order  to  have  them  placed  in  their  true  light  be 
fore  the  country,  so  framed  his  resolutions  that,  if  they  were 
65  "Life  of  Daniel  Webster,"  Curtis,  Vol.  I,  p.  no. 


DOCTRINES  OF  JOHN  MARSHALL  187 

answered  at  all,  the  whole  matter  must  be  disclosed.  The 
resolutions  were  introduced  by  him  on  the  loth  of  June,  1813, 
accompanied  by  some  temperate  remarks  concerning  the  doubt 
in  which  this  matter  was  then  enveloped.  What  Mr.  Webster 
said  on  this  occasion  strongly  attracted  the  attention  of  Chief 
Justice  Marshall. 

Nearly  twenty  years  afterward,  when  Mr.  Webster's  col 
lected  speeches  were  first  published,  we  see  by  the  above  let 
ter  that  the  Chief  Justice  was  greatly  disappointed  at  not 
finding  the  speech,  here  alluded  to,  in  the  volume. 

On  the  same  day  that  the  above  letter  was  written  to  Web 
ster  by  Marshall  Judge  Story  wrote  one  to  Webster  also, 
which  further  explains  the  above  letter,  and  also  verifies  it  in 
an  excellent  manner,  and  shows  the  aged  Chief  Justice,  now 
seventy-five  years  old,  to  have  a  freshness  of  memory  very  un 
usual.  The  letter  from  Judge  Story  to  Daniel  Webster  was 
as  follows : 

WASHINGTON,  January  23,  1831. 
MY  DEAR  SIR  : — 

After  the  Chief  Justice  (Marshall)  had  received  the  volume 
of  your  speeches  this  morning,  he  came  into  my  chamber,  and 
told  me  he  had  been  looking  over  the  index,  and  noticed  two 
omissions  of  speeches  which  he  remembered  you  had  made 
in  Congress  at  an  early  period  of  your  public  life,  and  which 
he  had  then  read.  One  was  on  some  resolutions,  calling  upon 
President  Madison  for  the  proof  of  the  repeal  of  the  Berlin 
and  Milan  Decrees;  the  other  on  the  subject  of  the  Previous 
Question.  He  observed :  "  I  read  these  speeches  with  very 
great  pleasure  and  satisfaction  at  the  time.  At  the  time  when 
the  first  was  delivered,  I  did  not  know  Mr.  Webster;  but  I 
was  so  much  struck  with  it,  that  I  did  not  hesitate  then  to 
state  that  Mr.  Webster  was  a  very  able  man,  and  would  be 
come  one  of  the  very  first  statesmen  in  America,  and  perhaps 
the  very  first." 

Such  praise  from  such  a  source  ought  to  be  very  gratifying. 
Consider  that  he  is  now  seventy-five  years  old,  and  that  he 
speaks  of  his  recollections  of  you  some  eighteen  years  ago  with 
a  freshness  which  shows  you  how  deeply  your  reasoning  im 
pressed  itself  on  his  mind.  Keep  this  in  memoriam  rei. 

Yours  very  truly, 
THE  HON.  DANIEL  WEBSTER.  JOSEPH  STORY. 


1 88  THE  POLITICAL  AND  ECONOMIC 

LETTER  SB  FROM  JOHN  MARSHALL  ON  THE  MODE  OF 
SELECTING  A  PRESIDENT 

James  Wilson  of  Pennsylvania,  one  of  the  ablest  and  wis 
est  men  of  the  country,  in  the  Convention  that  framed  the 
Constitution  (as  appears  in  the  "  Debates  "  of  that  body,  re 
ported  by  Madison,)  on  the  24th  of  July,  1787,  said  the 
great  difficulty  seems  to  spring  from  the  Mode  of  election. 
He  suggested  a  mode,  that  the  Executive  be  elected  for  six 
years,  by  not  more  than  fifteen  members  of  the  national  leg 
islature,  to  be  drawn  from  it  by  lot,  and  to  make  the  election 
without  separating,  thus  avoiding  intrigue  in  the  first  instance, 
and  also  diminishing  dependence. 

James  Hillhouse  was  one  of  the  strong  men  of  the  first  age 
of  the  Republic.  On  the  I2th  of  April,  1808,  he  introduced 
in  the  Senate  of  the  United  States  certain  articles  of  amend 
ment  of  the  Constitution,  which  included  a  reduction  of  the 
term  of  office  of  the  President  to  one  year,  of  Senators  to 
three  years,  Congressmen  to  one  year,  and  also  the  abolition 
of  the  office  of  Vice-President. 

Nothing  came  at  the  time  from  the  proposals  of  either  Mr. 
Wilson  or  Mr.  Hillhouse.  The  plans  of  these  two  distin 
guished  statesmen,  like  other  truths,  cannot  be  made  accept 
able,  by  any  force  of  reason  or  persuasion,  but  only  by  expe 
rience.  Upham  in  his  Life  of  Pickering  says :  "  Expe 
rience  long  ago  wrought  a  conviction  in  the  best  minds  known 
in  our  history,  that  such  a  mode  of  selecting  a  President  as 
Mr.  Hillhouse,  following  Mr.  Wilson,  had  urged,  ought  to  be 
adopted."  After  the  former  had  retired  from  public  life,  and 
more  than  twenty  years  had  intervened,  he  opened  a  corres 
pondence  on  the  very  same  subject  with  some  of  the  most 
eminent  of  his  former  associates  and  acquaintances.  Chief 
Justice  Marshall,  writing  in  1830,  says  his  "  views  of  this  sub 
ject  had  changed  a  good  deal  since  1808."  He  also  says: 
"  Your  plan  comes  in  conflict  with  so  many  opposing  inter 
ests  and  deep-rooted  prejudices,  that  I  would  despair  of  its 
success,  were  its  ability  still  more  apparent  than  it  is."  Again, 
"  We  must  proceed  with  our  present  system,  till  its  evils  be 
come  still  more  obvious."  His  views  are  fully  presented  in 
the  following  passage : 
66  "  Life  of  Pickering,"  Vol.  Ill,  pp.  108,  109. 


DOCTRINES  OF  JOHN  MARSHALL  189 

"  My  own  private  mind  has  been  slowly  and  reluctantly  ad 
vancing  to  the  belief  that  the  present  mode  of  choosing  the 
Chief  Magistrate  threatens  the  most  serious  danger  to  the 
public  happiness.  The  passions  of  men  are  inflamed  to  so 
fearful  an  extent,  large  masses  are  so  embittered  against  each 
other,  that  I  dread  the  consequences.  The  election  agitates 
every  section  of  the  United  States,  and  the  ferment  is  never 
to  subside.  Scarcely  is  a  President  elected,  before  the  mach 
inations,  respecting  a  successor,  commence.  Every  political 
question  is  affected  by  it.  All  those  who  are  in  office,  all 
those  who  want  office,  are  put  in  motion.  The  angriest,  I 
might  say  the  worst,  passions  are  roused,  and  put  into  full 
activity.  Vast  masses  united  closely,  move  in  opposite  direc 
tions,  animated  with  the  most  hostile  feelings  towards  each 
other.  What  is  to  be  the  effect  of  all  this?  Age  is,  perhaps, 
unreasonably  timid.  Certain  it  is,  that  I  now  dread  conse 
quences  that  I  once  thought  imaginary.  I  feel  disposed  to 
take  refuge  under  some  less  turbulent  and  less  dangerous  mode 
of  choosing  the  Chief  Magistrate;  and  my  mind  suggests 
none  less  objectionable  than  that  you  have  proposed.  We 
shall  no  longer  be  enlisted  under  the  banners  of  particular  men. 
Strife  will  no  longer  be  excited,  when  it  can  no  longer  effect  its 
object.  Neither  the  people  at  large,  nor  the  councils  of  the 
nation,  will  be  agitated  by  the  all-disturbing  question,  Who 
shall  be  President?  Yet  he  will,  in  truth,  be  chosen  sub 
stantially  by  the  people.  The  Senators  must  always  be  among 
the  most  able  men  of  the  States.  Though  not  appointed  for 
the  particular  purpose,  they  must  always  be  appointed  for  im 
portant  purposes,  and  must  possess  a  large  share  of  the  pub 
lic  confidence. 

If  the  people  of  the  United  States  were  to  elect  as  many 
persons  as  compose  one  Senatorial  class,  and  the  President 
was  to  be  chosen  among  them  by  lot,  in  the  manner  you 
propose,  he  would  be  substantially  elected  by  the  people; 
and  yet,  such  a  mode  of  election  would  be  recommended  by 
no  advantages  which  your  plan  does  not  possess.  In  many 
respects,  it  would  be  less  eligible. 

"  Reasoning  a  priori,  I  should  undoubtedly  pronounce  the 
system  adopted  by  the  Convention  the  best  that  could  be  de 
vised.  Judging  from  experience,  I  am  driven  to  a  different 
conclusion." 


I9o  THE  POLITICAL  AND  ECONOMIC 

Chancellor  Kent  wrote  as  follows :  "  The  popular  election 
of  the  President  (which,  by  the  way,  was  not  intended  by 
the  framers  of  the  Constitution)  is  that  part  of  the  machine 
of  our  government  that  I  am  afraid,  is  doomed  to  destroy 
us."  "  Our  plan  of  election  of  a  President,  I  apprehend,  has 
failed  of  its  purpose,  as  it  was  presumed  and  foretold  that  it 
would  fail,  by  some  of  the  profoundest  statesmen  of  1787  .  .  . 
has  already  disturbed  and  corrupted  the  administration  of  the 
government,  and  cherishes  intrigue,  duplicity,  abuse  of  power," 
etc. 

LETTER  «7  FROM  CHIEF  JUSTICE  MARSHALL  TO 
JAMES  K.  PAULDING 

RICHMOND,  April  4th  1835. 
SIR: 

Your  favor  of  the  22d  of  March  was  received  in  the  course 
of  the  mail,  but  I  have  been  confined  to  my  room,  and  am 
only  now  resuming  my  pen. 

The  single  difficulty  I  feel  in  complying  with  your  request 
arises  from  my  repugnance  to  anything  which  may  be  con 
strued  into  an  evidence  of  that  paltry  vanity  which,  if  I  know 
myself  forms  no  part  of  my  character.  To  detail  any  con 
versation  which  might  seem  to  insinuate  that  General  Wash 
ington  considered  my  engaging  in  the  political  transactions 
of  the  United  States  an  object  of  sufficient  consequence  to  in 
duce  him  to  take  an  interest  in  effecting  it,  may  look  like 
boasting  that  I  held  a  more  favorable  place  in  the  opinion 
of  that  great  man  than  the  fact  would  justify.  I  do  not, 
however,  think  that  this,  perhaps,  fastidious  feeling  would 
justify  a  refusal  to  answer  an  enquiry  made  in  terms  entitled 
to  my  sincere  acknowledgments. 

All  who  were  then  old  enough  to  notice  the  public  affairs 
of  the  United  States,  recollect  the  arduous  struggle  of  1798 
and  1799.  General  Washington,  it  is  well  known,  took  a  deep 
interest  in  it.  He  believed  that  the  real  independence,  the 
practical  self  government  of  our  country,  depended  greatly 
on  its  issue  —  on  our  resisting  the  encroachments  of  France. 

I  had  devoted  myself  to  my  profession,  and,  though  actively 
and  zealously  engaged  in  support  of  the  measures  of  his  ad- 

^  Lip  pine  ott's  Magazine,  Vol.  II,  pp.  624-625. 


DOCTRINES  OF  JOHN  MARSHALL  191 

ministration  in  the  legislature  of  Virginia,  had  uniformly  de 
clined  any  situation  which  might  withdraw  me  from  the  bar. 
In  1798  I  was  very  strongly  pressed  by  the  Federalists  to  be 
come  a  candidate  for  Congress,  and  the  gentleman  of  the 
party  who  had  offered  himself  to  the  district,  proposed  to  re 
sign  his  pretensions  in  my  favor.  I  had  however  positively 
refused  to  accede  to  the  proposition  and  believed  that  I  could 
not  be  induced  to  change  my  determination.  In  this  state  of 
things,  in  August  or  September  1798  as  well  as  I  recollect,  I 
received  an  invitation  from  General  Washington  to  accompany 
his  nephew,  the  late  Judge  Washington  on  a  visit  to  Mount 
Vernon.  I  accepted  the  invitation,  and  remained  at  Mount 
Vernon  four  or  five  days.  During  this  time  the  walk  and 
conversation  in  the  Piazza,  mentioned  by  Mr.  Lewis  took  place. 

General  Washington  urged  the  importance  of  the  crisis, 
expressed  his  decided  conviction  that  every  man  who  could 
contribute  to  the  success  of  sound  opinions  was  required  by 
the  most  sacred  duty  to  offer  his  services  to  the  public,  and 
pressed  me  to  come  into  the  Congress  of  the  ensuing  year. 

After  the  very  natural  declaration  of  distrust  in  my  ability 
to  do  any  good,  I  told  him  that  I  had  made  large  pecuniary 
engagements  which  required  close  attention  to  my  profes 
sion,  and  w^hich  would  distress  me  should  the  emoluments  de 
rived  from  it  be  abandoned.  I  also  mentioned  the  assurance 
I  had  given  to  the  gentleman  then  a  candidate,  which  I  could 
not  honorably  violate. 

He  thought  that  gentleman  would  still  willingly  withdraw 
in  my  favor,  and  that  my  becoming  a  member  of  Congress  for 
the  present,  would  not  sacrifice  my  practice  as  a  lawyer.  At 
any  rate  the  sacrifice  might  be  temporary. 

After  continuing  this  conversation  for  some  time,  he  directed 
my  attention  to  his  own  conduct.  He  had  withdrawn  from 
office  with  a  declaration  of  his  determination  never  again,  un 
der  any  circumstances,  to  enter  public  life.  No  man  could  be 
more  sincere  in  making  that  declaration,  nor  could  any  man 
feel  stronger  motives  for  adhering  to  it.  No  man  could  make 
a  stronger  sacrifice  than  he  did  in  breaking  a  resolution 
thus  publicly  made,  and  which  he  had  believed  to  be  unalterable. 
Yet,  I  saw  him,  in  opposition  to  his  public  declaration,  in  oppo 
sition  to  his  private  feelings,  consenting,  under  a  sense  of  duty, 
to  surrender  the  sweets  of  retirement,  and  again  to  enter  the 


192          DOCTRINES  OF  JOHN  MARSHALL 

most  arduous  and  perilous  station  which  an  individual  could  fill. 
My  resolution  yielded  to  this  presentation.  After  remark 
ing  that  the  obligation  which  had  controuled  his  course  was 
essentially  different  from  that  which  bound  me  —  that  no 
other  man  could  fill  the  place  to  which  his  country  had  called 
him,  whereas  my  services  could  weigh  but  little  in  the  politi 
cal  balance,  I  consented  to  become  a  candidate,  and  have  con 
tinued,  ever  since  my  election,  in  public  life. 

This  letter  is  intended  to  be  private,  and  you  will  readily 
perceive  the  unfitness  of  making  it  public.  It  is  written  be 
cause  it  has  been  requested  in  polite  and  obliging  terms,  and 
because  I  am  willing,  should  your  own  views  induce  you  to 
mention  the  fact  derived  from  Mr.  Lewis,  to  give  you  the  as 
surance  of  its  truth. 

With  very  great  respect, 

I  am,  Sir, 
Your  Obed't  Serv't, 

J.  MARSHALL. 

Mr.  James  K.  Paulding  was  gathering  material  for  a  life 
of  Washington  when  he  heard  of  a  story  concerning  Marshall's 
candidacy  for  Congress.  He  wrote  to  Marshall  about  it,  and 
this  letter  was  then  written, —  a  short  while  before  Chief  Jus 
tice  Marshall  died. 


CHAPTER  III 

A    FEW    IMPORTANT    LETTERS    TO    CHIEF    JUSTICE    MARSHALL 

President  Washington's  letter  offering  to  John  Marshall  the 
office  of  Attorney  General,  which  he  declined,  because  he  pre 
ferred  professional  life  to  public, —  was  as  follows : 

PHILADELPHIA,  August  26,  1795. 
DEAR  SIR  : 

The  office  of  Attorney-General  of  the  United  States  has 
become  vacant  by  the  death  of  Mr.  Bradford.  I  take  the 
earliest  opportunity  of  asking  if  you  will  accept  the  appoint 
ment?  The  salary  annexed  thereto  and  the  prospect  of  a  lu 
crative  practice  in  this  city,  the  present  seat  of  the  government, 
must  be  as  well  known  to  you  as,  better  perhaps,  than  they  are 
to  me  and  therefore  I  shall  say  nothing  concerning  them.  If 
your  answer  is  in  the  affirmative,  it  will  readily  occur  to  you, 
that  no  unnecessary  time  should  be  lost  in  repairing  to  this 
place.  If  on  the  contrary  it  should  be  in  the  negative,  which  I 
should  be  very  sorry  for,  it  might  be  as  well  to  say  nothing  of 
this  offer.  But  in  either  case  I  pray  you  give  me  an  answer 
as  promptly  as  you  can. 

With  esteem  and  regard,  I  am,  etc., 

GEORGE  WASHINGTON. 

A  short  time  after  Justice  Story  completed  his  three  volumes 
of  "  Commentaries  on  the  Constitution  "  he  wrote  an  Abridg 
ment  of  it,  which  was  prepared  as  a  text-book  for  the  Law 
School  and  College.  This  work  was  dedicated  to  Chief  Justice 
Marshall  in  the  letter  that  follows. 

To  THE  HONORABLE  JOHN  MARSHALL,  LL.D.,  CHIEF  JUS 
TICE  OF  THE  UNITED  STATES  OF  AMERICA 

CAMBRIDGE,  January,  1833. 
SIR: 

I  ask  the  favor  of  dedicating  this  work  to  you.     I  know 

193 


194  THE  POLITICAL  AND  ECONOMIC 

not  to  whom  it  could  with  so  much  propriety  be  dedicated,  as 
to  one  whose  youth  was  engaged  in  the  arduous  enterprises 
of  the  Revolution ;.  whose  manhood  assisted  in  framing  and 
supporting  the  national  Constitution ;  and  whose  maturer  years 
have  been  devoted  to  the  task  of  unfolding  its  powers  and  il 
lustrating  its  principles.  When,  indeed,  I  look  back  upon  your 
judicial  labors,  during  a  period  of  thirty-two  years,  it  is  diffi 
cult  to  suppress  astonishment  at  their  extent  and  variety,  and 
at  the  exact  learning,  the  profound  reasoning,  and  the  solid 
principles  which  they  everywhere  display.  Other  judges  have 
attained  an  elevated  reputation  by  similar  labors,  in  a  single 
department  of  jurisprudence.  But  in  one  department,  (it 
need  scarcely  be  said  that  I  allude  to  that  of  constitutional 
law,)  the  common  consent  of  your  countrymen  has  admitted 
you  to  stand  without  a  rival.  Posterity  will  assuredly  con 
firm,  by  its  deliberate  award,  what  the  present  age  has  ap 
proved,  as  an  act  of  undisputed  justice.  Your  expositions  of 
constitutional  law  enjoy  a  rare  and  extraordinary  authority. 
They  constitute  a  monument  of  fame  far  beyond  the  ordinary 
memorials  of  political  and  military  glory.  They  are  destined 
to  enlighten,  instruct,  and  convince  future  generations;  and 
can  scarcely  perish  but  with  the  memory  of  the  Constitution 
itself.  They  are  the  victories  of  a  mind  accustomed  to  grapple 
with  difficulties,  capable  of  unfolding  the  most  comprehensive 
truths  with  masculine  simplicity  and  severe  logic,  and  prompt 
to  dissipate  the  illusions  of  ingenious  doubt,  and  subtle  argu 
ment,  and  impassioned  eloquence.  They  remind  us  of  some 
mighty  river  of  our  own  country,  which,  gathering  in  its 
course  the  contributions  of  many  tributary  streams,  pours  at 
last  its  own  current  into  the  ocean,  deep,  clear,  and  irresistible. 

But  I  confess  that  I  dwell  with  even  more  pleasure  upon 
the  entirety  of  a  life  adorned  by  consistent  principles,  and 
filled  up  in  the  discharge  of  virtuous  duty;  where  there  is  noth 
ing  to  regret,  and  nothing  to  conceal ;  no  friendships  broken ; 
no  confidence  betrayed ;  no  timid  surrenders  to  popular  clamor ; 
no  eager  reaches  for  popular  favor.  Who  does  not  listen  with 
conscious  pride  to  the  truth,  that  the  disciple,  the  friend,  the 
biographer  of  Washington,  still  lives,  the  uncompromising  ad 
vocate  of  his  principles? 

I  am  but  too  sensible  that,  to  some  minds,  the  time  may  not 
seem  yet  to  have  arrived,  when  language  like  this,  however 


DOCTRINES  OF  JOHN  MARSHALL  195 

true,  should  meet  the  eyes  of  the  public.  May  the  period  be 
yet  far  distant,  when  praise  shall  speak  out  with  that  fullness 
of  utterance  which  belongs  to  the  sanctity  of  the  grave. 

But  I  know  not  that,  in  the  course  of  Providence,  the  priv 
ilege  will  be  allowed  me  hereafter  to  declare,  in  any  suitable 
form,  my  deep  sense  of  the  obligations  which  the  jurisprudence 
of  my  country  owes  to  your  labors,  of  which  I  have  been  for 
twenty-one  years  a  witness,  and  in  some  humble  measure  a 
companion.  And  if  any  apology  should  be  required  for  my 
present  freedom,  may  I  not  say  that,  at  your  age,  all  reserve 
may  well  be  spared,  since  all  your  labors  must  soon  belong  ex 
clusively  to  history? 

Allow  me  to  add,  that  I  have  a  desire  (will  it  be  deemed  pre 
sumptuous?)  to  record  upon  these  pages  the  memory  of  a 
friendship,  which  has  for  so  many  years  been  to  me  a  source 
of  inexpressable  satisfaction ;  and  which,  I  indulge  the  hope, 
may  continue  to  accompany  and  cheer  me  to  the  close  of  life. 
I  am,  with  the  highest  respect, 

Affectionately  your  servant, 

JOSEPH  STORY. 

LETTER  FROM   THOMAS  JEFFERSON   TO   JOHN    MARSHALL 

Chief  Justice  Marshall  went  to  France  as  one  of  the  En 
voys,  with  Pinckney  and  Gerry.  Upon  his  return  from  France 
the  following  note  was  received  from  Thomas  Jefferson,  who 
was  at  the  time  secretly  trying  to  ruin  him.  In  after  years 
the  Chief  Justice  frequently  laughed  over  it,  saying,  "  Mr.  Jef 
ferson  came  very  near  writing  the  truth ;  the  added  un  to  lucky 
policy  alone  demanded."  The  note,  now  the  property  of  one 
of  his  granddaughters,  is  as  follows : 

Thos.  Jefferson  presents  his  compliments  to  General 
Marshall.  He  had  the  honor  of  calling  at  his  lodgings  twice 
this  morning,  but  was  so  unlucky  as  to  find  that  he  was  out  on 
both  occasions.  He  wished  to  have  expressed  in  person  his 
regret  that  a  pre-engagement  for  today,  which  could  not  be 
dispenced  with,  would  prevent  him  the  satisfaction  of  dining 
in  company  with  Genl.  Marshall,  and  therefore  begs  leave  to 
j place  here  the  expressions  of  that  respect  which  in  company 
|  with  his  fellow  citizens  he  bears  him. 

GENL.  MARSHALL 

at  Oeller's  Hotel,  June  23d,  1798. 


196          DOCTRINES  OF  JOHN  MARSHALL 

JOHN  MARSHALL  SWORN  IN  AS  COUNCILOR 

In  the  "  Calendar  of  Virginia  State  Papers  and  Other  Manu 
scripts,  from  January,  1782,  to  December  31,  1784,"  in  the 
Capitol  at  Richmond,  is  to  be  found  the  following  anounce- 
ment: 


November  3Oth, 
Richmond. 
John  Marshall 
sworn  as 
Counsellor. 


City  of  Richmond,  ss : 

This  day  personally  appeared  be 
fore  me,  one  of  the  Aldermen  of  the 
said  City,  John  Marshall,  Esq'r,  and 
took  the  Oaths  of  fidelity  and  a 
Privy  Counsellor  as  prescribed  by 
law. 

Certified   under   my   Hand   this 
thirtieth  day  of  November,  1782. 
J.  AMBLER. 


CHAPTER  IV 

MISCELLANEOUS    WRITINGS 
AUTOBIOGRAPHY  OF  JOHN  MARSHALL 

"  I  was  born  on  the  24th  of  September,  1755,  in  the  county 
of  Fauquier  in  Virginia.  My  father,  Thomas  Marshall,  was 
the  eldest  son  of  John  Marshall,  who  intermarried  with  a 
Miss  Markham,  and  whose  parents  migrated  from  Wales,  and 
settled  in  the  county  of  Westmoreland  in  Virginia,  where  my 
father  was  born.  My  mother  was  named  Mary  Keith;  she 
was  the  daughter  of  a  clergyman  of  the  name  of  Keith  who 
migrated  from  Scotland,  and  intermarried  with  a  Miss  Ran 
dolph  on  James  River. 

"  I  was  educated  at  home,  under  the  direction  of  my  father, 
who  was  a  planter,  but  was  often  called  from  home  as  a  sur 
veyor.  From  my  infancy  I  was  destined  for  the  bar;  but 
the  contest  between  the  mother  country  and  her  colonies  drew 
me  from  my  studies  and  my  father  from  the  superintendence 
of  them;  and  in  September  1775^  I  entered  into  the  service  as 
a  subaltern.  I  continued  in  the  army  until  the  year  1781, 
when,  being  without  a  command,  I  resigned  my  commission,  in 
the  interval  between  the  invasions  of  Virginia  by  Arnold  and 
Phillips. 

"  In  the  year  1782,  I  was  elected  into  the  legislature  of 
Virginia;  and  in  the  fall  session  of  the  same  year  was  chosen 
a  member  of  the  executive  council  of  that  State. 

"  In  January,  1783,  I  intermarried  with  Mary  Willis  Am 
bler,  the  second  daughter  of  Mr.  Jacquelin  Ambler,  then  treas 
urer  of  Virginia,  who  was  the  third  son  of  Mr.  Richard  Am 
bler,  a  gentleman  who  had  migrated  from  England,  and  set 
tled  at  Yorktown  in  Virginia. 

"  In  April,  1784,  I  resigned  my  seat  in  the  executive  coun 
cil,  and  came  to  the  bar,  at  which  I  continued,  declining  any 
other  public  office  than  a  seat  in  the  legislature,  until  the  year 
1797,  when  I  was  associated  with  General  Pinckney  and  Mr. 
Gerry  in  a  mission  to  France.  In  1798,  I  returned  to  the 
United  States;  and  in  the  spring  of  1799  was  elected  a  mem- 

197 


198  THE  POLITICAL  AND  ECONOMIC 

her  of  Congress,  a  candidate  for  which,  much  against  my  in 
clination,  I  was  induced  to  become  by  the  request  of  General 
Washington. 

"  At  the  close  of  the  first  session,  I  was  nominated,  first  to 
the  Department  of  War,  and  afterwards  to  that  of  state,  which 
last  office  I  accepted,  and  in  which  I  continued  until  the  be 
ginning  of  the  year  1801,  when  Mr.  Ellsworth  having  resigned, 
and  Mr.  Jay  having  declined  his  appointment,  I  was  nominated 
to  the  office  of  Chief  Justice,  which  I  still  hold. 

"  I  am  the  oldest  of  fifteen  children,  all  of  whom  lived  to 
be  married,  and  of  whom  nine  are  now  living.  My  father 
died  when  about  seventy- four  years  of  age;  and  my  mother, 
who  survived  him  about  seven  years,  died  about  the  same  age. 
I  do  not  recollect  all  the  societies  to  which  I  belong,  though 
they  are  very  numerous.  I  have  written  no  book,  except  the 
Life  of  Washington,  which  was  executed  with  so  much  pre 
cipitation  as  to  require  much  correction." 

A  pamphlet  entitled  "  An  Address  on  the  Life,  Character 
and  Influence  of  Chief  Justice  Marshall,  delivered  at  Rich 
mond  on  the  fourth  day  of  February,  1901,  at  the  request  of 
the  State  Bar  Association  of  Virginia  and  the  Bar  Associa 
tion  of  the  City  of  Richmond,  by  Horace  Gray,"  contains  the 
above  autobiography.  Justice  Gray  says  that  his  earliest 
knowledge  of  the  existence  of  such  an  autobiography  was  ob 
tained  from  a  thin  pamphlet,  published  at  Columbus,  Ohio,  in 
1848,  which  was  found  in  an  old  bookstore  in  Boston.  It 
contained, —  besides  Marshall's  famous  speech  in  Congress  on 
the  case  of  Jonathan  Robbins, —  only  a  letter,  entitled  "  Auto 
biography  of  John  Marshall."  The  internal  evidence  of  its 
genuineness  is  very  strong;  and  its  authenticity  is  put  almost 
beyond  a  doubt  by  a  facsimile, —  at  present  in  the  Virginia 
State  Library, —  of  a  folio  sheet  in  Marshall's  handwriting, 
which,  although  it  contains  neither  the  whole  of  the  letter 
nor  its  address,  bears  the  same  date,  and  contains  the  princi 
pal  paragraph  of  the  letter,  word  for  word,  with  the  correc 
tions  of  the  original  manuscript,  immediately  followed  by  his 
signature.  Justice  Gray  says  that  in  his  researches,  incited 
by  the  invitation  to  speak  on  the  life  of  Marshall,  he  found  a 
letter  from  Chief  Justice  Marshall,  dated  Richmond,  March 
22,  1818,  and  addressed  to  Joseph  Delaplaine,  Esq.,  Phila- 


DOCTRINES  OF  JOHN  MARSHALL  199 

delphia.  D'elaplaine  was  then  publishing,  in  numbers,  his 
"  Repository  of  the  Lives  and  Portraits  of  Distinguished  Amer 
ican  Characters,"  which  was  discontinued  soon  afterward,  with 
out  ever  including  Marshall.  The  letter  purports  to  have  been 
written  in  answer  to  one  "  requesting  some  account  of  my 
birth,  parentage,  and  so  on,"  and  the  autobiography  was  the 
result.  It  reads  as  if  it  was  meant  for  publication,  and  no 
doubt  would  have  been  published  if  the  "  Repository  "  had  ever 
been  completed. 

THE  WILL  OF  CHIEF  JUSTICE  MARSHALL 

The  will  of  John  Marshall  is  on  file  in  Richmond,  Virginia. 
It  is  in  many  respects  a  singular  will.  The  estate  consists 
chiefly  of  land,  part  of  which  is  known  as  the  famous  "  Gren- 
way  Court,"  which  was  the  forest  home  of  Lord  Fair 
fax.  George  Washington  surveyed  this  land,  and  was  quite 
often  a  guest  at  the  place.  Sallie  E.  Marshall  Hardy  says 
that  the  Chief  Justice  bought  part  of  this  property;  the  rest 
he  received  as  a  fee  for  arranging  the  dispute  between  the 
State  of  Virginia  and  Lord  Fairfax's  heir, —  Dr.  Fairfax,  of 
England, —  who,  it  was  claimed,  was  an  "  alien  enemy  during 
the  Revolutionary  War,  and  therefore  had  forfeited  his  in 
heritance." 

The  will  is  dated  April  9,  1832,  and  has  five  codicils,  of 
which  the  last  was  written  but  a  short  time  before  his  death. 
The  codicils  are  dated  as  follows:  August  13,  1832;  March 
29.  l834;  July  3>  l834;  November  6,  1834;  July  3,  1835;  and 
at  the  end  of  each  the  following  sentence  appears :  :<  This 
codicil  was  wholly  written  by  myself. —  J.  Marshall."  The 
will, —  which  was  probated  in  Richmond,  in  July,  1835, —  is  in 
his  own  characteristic  handwriting. 

"  I,  John  Marshall,  do  make  this  my  last  will  and  testament, 
entirely  in  my  own  handwriting,  this  ninth  day  of  April,  1832. 
I  owe  nothing  on  my  own  account,"  and  so  on. 

Then  he  arranged  for  the  disposal  of  an  estate  he  held  in 
trust  and  for  the  settlement  of  a  suit  for  some  property  which 
he  purchased  and  for  the  note  of  a  friend  which  he  had  en 
dorsed.  The  settlement  of  the  suit  did  not  take  place  until 
about  forty  years  after  the  death  of  Marshall,  so  great  was  the 


200  THE  POLITICAL  AND  ECONOMIC 

law's  d^lay,  and  when  it  was  settled  the  multiplicity  of  heirs 
was  so  great  that  each  one  received  but  eleven  dollars  as  a 
share  of  several  thousands. 

The  estate  was  equally  divided  between  his  five  sons  and  an 
only  daughter.  He  leaves  the  share  of  his  daughter  in  trust, 
and  says : 

"  I  have  long  thought  that  the  provision  intended  by  a 
parent  for  a  daughter  ought,  in  common  prudence,  to  be  se 
cured  to  herself  and  children,  so  as  to  protect  her  and  them 
from  distress,  whatever  casualties  may  happen.  Under  this 
impression,  without  derogating  from  the  esteem  and  affec 
tion  I  feel  for  my  son-in-law,  I  give  to  my  nephew,  Thomas  M. 
Anbler,  in  trust,  to  apply  the  annual  profits  to  the  maintenance 
of  my  daughter  and  her  family  and  for  the  education  of  her 
children,  for  her  and  their  separate  use,  not  to  be  subject  to 
the  control  of  her  husband  or  to  the  payment  of  his  debts." 
He  then  recommends  that  the  son-in-law  be  employed  as  agent 
to  manage  the  daughter's  estate,  and  in  the  event  that  he 
should  survive  her,  there  was  to  be  paid  to  him  one-half  of 
the  annual  profits  for  his  own  use,  out  of  the  profits  of  the 
property  bequeathed  to  the  daughter  and  her  offspring. 

John  Marshall  had  a  very  deep  love  and  lasting  reverence 
for  his  wife,  who  died  several  years  before  he  did.  Part  of 
the  will  shows  that  he  remembered  her  slightest  wish,  for  at 
her  request  he  gives  to  one  of  her  friends  the  dividends  on  ten 
bank  shares  during  life,  "  as  a  token  of  my  wife's  gratitude  for 
long  and  valuable  attentions."  That  part  of  the  will  is  as  fol 
lows: 

"  My  beloved  wife  requested  me  while  living  to  hold  in 
trust  for  our  daughter  one  hundred  bank-shares,  to  pay  the 
dividends  to  her  during  my  life  and  to  secure  the  same  to  her 
and  her  children  when  Providence  should  call  me,  also,  from 
this  world.  In  compliance  with  the  wish  of  her  whose  sainted 
spirit  has  fled  from  the  sufferings  inflicted  on  her  in  this  life,  I 
give,"  and  so  on.  "  My  daughter  will  never  forget  that  this 
is  the  gift  of  the  best  and  most  affectionate  of  mothers."  'He 
gives  to  each  of  his  grandsons  named  John  one  thousand  acres 
of  land,  and  adds : 

"  If  at  the  time  of  my  death  either  of  my  sons  should  have 
no  son  named  John,  then  I  give  the  land  to  any  son  he  may 
have  named  Thomas  in  token  of  my  love  for  my  father  and 


DOCTRINES  OF  JOHN  MARSHALL  201 

veneration  for  his  memory.  If  there  shall  be  no  son,  named 
John  or  Thomas,  then  I  give  the  land  to  the  eldest  sons,  and 
if  no  sons  to  the  daughters." 

"  I  had  heretofore  appointed  my  sons  and  son-in-law  as  exec 
utors  of  my  last  will.  In  the  apprehension  that  the  appoint 
ments  of  so  many  executors  may  produce  some  confusion  in 
the  management  of  my  affairs,  I  have  changed  my  purpose 
and  have  determined  to  select  one  of  my  own  sons  who  may 
be  sufficiently  active  to  attend  completely  to  the  business.  I 
therefore  appoint  my  son,  James  Keith  Marshall,  to  be  my  sole 
executor,  directing  that  no  surety  shall  be  required  from  him, 
and  allowing  him  $1000  for  his  pains.  I  hereby  revoke  all 
former  and  other  wills  and  declare  this  to  be  my  last  will, 
written  in  my  hand,  on  two  sheets  of  paper,  this  ninth  day  of 
April,  one  thousand  eight  hundred  and  thirty-two. —  J.  MAR 
SHALL." 

Among  other  possessions  Judge  Marshall  owned  a  number 
of  slaves.  His  body-servant,  and  perhaps  his  favorite  slave, 
was  disposed  of  in  one  of  the  codicils  of  the  will  as  follows: 

"  It  is  my  wish  to  emancipate  my  faithful  servant,  Robin, 
and  I  direct  his  emancipation  if  he  chuses  to  conform  to  the 
laws  on  that  subject  requiring  that  he  should  leave  the  state,  or 
if  permission  can  be  obtained  for  his  continuing  to  reside  in 
it.  In  the  event  of  his  going  to  Liberia,  I  give  him  one  hun 
dred  dollars;  if  he  does  not  go  thither  I  give  him  fifty  dollars. 
Should  it  be  impracticable  to  liberaye  him  consistently  with 
law  and  his  own  inclination,  I  desire  that  he  may  chuse  his 
master  among  my  sons,  or  if  he  prefer  my  daughter,  he  may  be 
held  for  her  and  her  family  as  is  the  other  property  bequeathed 
in  trust  for  her,  and  that  he  may  always  be  treated  as  a  faith 
ful,  meritorious  servant. —  J.  MARSHALL." 

CHIEF  JUSTICE  MARSHALL'S  EULOGY  UPON  HIS  WIFE 

"  Recently  while  in  attendance  at  a  Sunday-School  conven 
tion  at  Washington,  Mason  County,  in  this  state,  I  was  in 
vited,  with  several  others,  to  dine  with  the  family  of  the  Hon. 
Martin  P.  Marshall,  a  resident  of  the  village. 

"  Mr.  Marshall  is  one  of  the  most  gifted  and  cultivated  men 
of  the  State.  He  was  at  one  time  somewhat  prominent  in 


202  THE  POLITICAL  AND  ECONOMIC 

public  affairs.  He  is  now  advanced  in  years,  however,  and  is 
living  the  life  of  a  retired  private  citizen. 

"  He  is  a  nephew  of  the  Hon.  John  Marshall,  deceased,  for 
merly  Chief  Justice  of  the  United  States,  and  was  in  the 
earlier  years  of  his  life  a  member  of  the  Chief  Justice's  family. 

"  In  conversation  in  regard  to  his  uncle  he  spoke  in  terms  of 
the  warmest  admiration  of  his  character.  Daily  intercourse 
with  him  had  taught  him  to  revere  and  love  him.  He  dwelt 
particularly  upon  the  simplicity  and  beauty  of  his  private  life. 
He  was  a  model  of  what  a  husband  should  be  to  the  wife  of 
his  bosom  in  respect  to  the  love  which  he  should  cherish  for  her, 
the  tenderness  with  which  he  should  watch  over  her  and 
nurse  her  in  failing  health,  and  the  fondness  with  which  he 
should  think  of  her  when  death  has  taken  her  from  his  arms. 

"  Rising  in  the  midst  of  his  remarks,  our  host  invited  an 
other  gentleman  and  myself,  who  were  listening  to  him,  into 
his  private  apartment,  and  there  opening  a  drawer,  he  took  out 
and  read  to  us  a  paper  written  by  the  Chief  Justice  on  the 
first  anniversary  of  his  wife's  death,  in  memory  of  his  love 
for  her,  and  of  the  excellences  of  her  life  and  character. 

"  I  asked  him  if  the  paper  had  ever  been  published.  He  said 
that  it  had  not;  that  he  kept  it  sacred  as  a  private  legacy, 
and  had  never  obtained  his  own  consent  to  let  it  be  given  to 
the  public.  I  said  to  him  that  I  thought  it  ought  to  be  pub 
lished,  as  I  believed  that  it  would  be  read  with  interest  and 
profit  by  all  into  whose  hands  it  would  come.  Just  then  we 
were  called  to  dinner. 

"  Afterward  the  conversation  in  regard  to  the  paper  was  re 
newed,  and  before  I  left  the  house,  Mr.  Marshall  yielded  his 
consent  to  have  it  published,  and  handed  it  to  me  for  that 
purpose. 

"  A  copy  of  it  is  herewith  inclosed,  with  the  belief  that  its 
publication  will  increase  the  respect  which  the  people  of  this 
country  already  feel  for  the  memory  of  its  author,  and  at  the 
same  time  enhance  their  appreciation  of  the  domestic  virtues 
which  were  so  beautifully  and  admirably  illustrated  in  the  life 
of  the  great  Chief  Justice.  D.  S. 

"  Kentucky,  August  20,  1881." 

The  following  letter  was  sent  to  me  by  the  Rev.  D.  Steven 
son,  with  a  copy  of  the  eulogy  which  was  published  in  the  year 
1882  in  Harper's,  Vol.  LXV,  pp.  771-773. 


DOCTRINES  OF  JOHN  MARSHALL          203 

THE   EULOGY 

December  25,  1832. 

This  day  of  joy  and  festivity  to  the  whole  Christian  world 
is  to  my  sad  heart  the  anniversary  of  the  keenest  affliction 
which  humanity  can  sustain.  While  all  around  is  gladness,  my 
mind  dwells  on  the  silent  tomb,  and  cherishes  the  remembrance 
of  the  beloved  object  it  contains. 

On  the  25th  of  December  it  was  the  will  of  Heaven  to  take 
to  itself  the  companion  who  had  sweetened  the  choicest  part 
of  my  life,  had  rendered  toil  a  pleasure,  had  partaken  of  all 
my  feelings,  and  was  enthroned  in  the  inmost  recess  of  my 
heart. 

Never  can  I  cease  to  feel  the  loss,  and  to  deplore  it.  Grief 
for  her  is  too  sacred  ever  to  be  profound  on  this  day,  which 
shall  be  during  my  existence  devoted  to  her  memory. 

On  the  3d  of  January,  1783,  I  was  united  by  the  holiest 
bonds  to  the  woman  I  adored.  From  the  hour  of  our  union 
to  that  of  our  separation  I  never  ceased  to  thank  Heaven  for 
this  its  best  gift.  Not  a  moment  passed  in  which  I  did  not 
consider  her  as  a  blessing  from  which  the  chief  happiness  of 
my  life  was  derived. 

This  never-dying  sentiment,  originating  in  love,  was  cher 
ished  by  a  long  and  close  observation  of  as  amiable  and  es 
timable  qualities  as  ever  adorned  the  female  bosom. 

To  a  person  which  in  youth  was  very  attractive,  to  manners 
uncommonly  pleasing,  she  added  a  fine  understanding,  and  the 
sweetest  temper  which  can  accompany  a  just  and  modest  sense 
of  what  was  due  to  herself. 

I  saw  her  first  the  week  she  attained  the  age  of  fourteen, 
and  was  greatly  pleased  with  her. 

Girls  then  came  into  company  much  earlier  than  at  pres 
ent.  As  my  attentions,  though  without  any  avowed  purpose, 
nor  so  open  and  direct  as  to  alarm,  soon  became  ardent  and 
assiduous,  her  heart  received  an  impression  which  could  never 
be  effaced.  Having  felt  no  prior  attachment,  she  became  at' 
sixteen  a  most  devoted  wife.  All  my  faults  —  and  they  were 
too  many  —  could  never  weaken  this  sentiment.  It  formed  a 
part  of  her  existence.  Her  judgment  was  so  sound  and  so 
safe  that  I  have  often  relied  upon  it  in  situations  of  some  per 
plexity.  I  do  not  remember  ever  to  have  regretted  the  adop 
tion  of  her  opinion.  I  have  sometimes  regretted  its  rejection. 


204  THE  POLITICAL  AND  ECONOMIC 

From  native  timidity  she  was  opposed  to  everything  ad 
venturous,  yet  few  females  possessed  more  real  firmness. 

That  timidity  so  influenced  her  manners  that  I  could  rarely 
prevail  on  her  to  display  in  company  the  talents  I  knew  her 
to  possess.  They  were  reserved  for  her  husband  and  her  se 
lect  friends.  Though  serious  as  well  as  gentle  in  her  deport 
ment,  she  possessed  a  good  deal  of  chaste,  delicate,  and  play 
ful  wit,  and  if  she  permitted  herself  to  indulge  this  talent, 
told  her  little  story  with  grace,  and  could  mimic  very  suc 
cessfully  the  peculiarities  of  the  person  who  was  its  subject. 

She  had  a  fine  taste  for  belle-lettre  reading,  which  was  ju 
diciously  applied  in  the  selection  of  pieces  she  admired. 

This  quality,  by  improving  her  talents  for  conversation,  con 
tributed  not  inconsiderably  to  make  her  a  most  desirable  and 
agreeable  companion.  It  beguiled  many  of  those  winter  even 
ings  during  which  her  protracted  ill  health  and  her  feeble  nerv 
ous  system  confined  us  entirely  to  each  other.  I  can  never 
cease  to  look  back  on  them  with  deep  interest  and  regret.  Time 
has  not  diminished,  and  will  not  diminish,  this  interest  and 
this  regret. 

In  all  the  relations  of  life  she  was  a  model  with  those  to 
whom  it  was  given  can  not  imitate  too  closely.  As  the  wife, 
the  mother,  the  mistress  of  a  family,  and  the  friend,  her  life 
furnished  an  example  of  those  who  could  observe  intimately 
which  will  not  be  forgotten.  She  felt  deeply  the  distress  of 
others,  and  indulged  the  feeling  liberally  on  objects  she  be 
lieved  to  be  meritorious. 

She  was  educated  with  a  profound  reverence  for  religion, 
which  she  preserved  to  her  last  moment.  This  sentiment 
among  her  earliest  and  deepest  impressions  gave  character  to 
her  whole  life.  Hers  was  the  religion  taught  by  the  Saviour 
of  man.  She  was  cheerful,  mild,  benevolent,  serious,  humane, 
intent,  on  self -improvement  and  the  improvement  of  those  who 
looked  to  her  for  precept  or  example.  She  was  a  firm  be 
liever  in  the  faith  inculcated  by  the  Church  in  which  she 
was  bred,  but  her  soft  and  gentle  temper  was  incapable  of 
adopting  the  gloomy  and  austere  dogmas  which  some  of  its 
professors  have  sought  to  ingraft  on  it. 

r      I  have  lost  her,  and  with  her  I  have  lost  the  solace  of  my 
t  life.     Yet  she  remains  still  the  companion  of  my  retired  hours, 


DOCTRINES  OF  JOHN  MARSHALL          205 

still  occupies  my  inmost  bosom.     When  alone  and  unemployed, 
my  mind  unceasingly  recurs  to  her. 

More  than  a  thousand  times  since  the  25th  of  December, 
1831,  have  I  repeated  to  myself  the  beautiful  lines  written  by 
Burgoyne  under  a  similar  affliction,  substituting  Mary  for 
Anna: 

"  Encompassed  in  an  angel's  frame 

An  angel's  virtues  lay : 
How  soon  did  Heaven  assert  its  claim, 
And  take  its  own  way ! 

"  My  Mary's  worth,  my  Mary's  charms, 

Can  never  more  return. 
What  now  shall  fill  these  widowed  arms? 
Ah  me!  my  Mary's  urn  — 
Ah  me!  ah  me!  my  Mary's  urn." 

MARSHALL  ON  PUBLIC  LANDS 

Mr.  Marshall,  from  the  Committee  to  whom  was  referred 
the  consideration  of  the  expediency  of  accepting  from  the 
State  of  Connecticut  a  cession  of  jurisdiction  of  the  territory 
west  of  Pennsylvania,  commonly  called  the  Western  Reserve  of 
Connecticut,  with  directions  to  report  by  bill,  or  otherwise, 
made  the  following  report : 

That,  in  the  year  1606,  on  the  loth  of  April,  James  I, 
King  of  England,  on  the  application  of  Sir  Thomas  Gates  and 
others,  for  a  license  to  settle  a  colony  in  that  part  of  America 
called  Virginia,  not  possessed  by  any  Christian  prince  or 
people,  between  the  thirty-fourth  and  forty-fifth  degrees  of 
north  latitude,  granted  them  a  charter.  In  order  to  facili 
tate  the  settlement  of  the  country,  and  at  the  request  of  the 
adventurers,  he  divided  it  into  two  colonies.  To  the  first 
colony,  consisting  of  citizens  of  London,  he  granted,  "  That 
they  might  begin  their  first  plantation  and  habitation  at  any 
placr  on  the  said  coast  of  Virginia  or  America,  where  they 
p1  ,  think  fit  and  convenient,  between  the  said  four-and- 
tiiirty  and  one-and-forty  degrees  of  the  said  latitude;  and 
they  shall  have  all  lands,  &c,  from  the  said  first  seat  of  their 
plantation  and  habitation,  by  the  space  of  fifty  miles,  of  Eng 
lish  statute  measure,  all  along  the  said  coast  of  Virginia  and 
America,  towards  the  west  and  southwest,  as  the  coast  lieth, 
with  all  the  islands,  within  one  hundred  miles,  directly  over 


206  THE  POLITICAL  AND  ECONOMIC 

and  against  the  same  seacoast ;  and  also  all  the  lands,  &c,  from 
said  place  of  their  first  plantation  and  habitation,  for  the 
space  of  fifty  like  English  miles,  all  along  the  said  coast  of 
Virginia  and  America,  towards  the  east  and  northeast,  or 
towards  the  north,  as  the  coast  lieth,  with  all  the  islands, 
within  one  hundred  miles,  directly  over  and  against  the  said 
seacoast ;  and  also  all  the  lands,  &c,  from  the  same  fifty  miles 
every  way  on  the  seacoast,  directly  into  the  main  land,  by  the 
space  of  one  hundred  like  English  miles :  and  that  no  other 
subjects  should  be  allowed  to  settle  on  the  back  of  them,  to 
wards  the  main  land,  without  written  license  from  the  coun 
cil  of  the  colony." 

To  the  second  colony,  consisting  of  Thomas  Hanham  and 
others,  of  the  town  of  Plymouth,  King  James  granted  the 
tract  between  the  thirty-eighth  and  forty-fifth  degrees  of  north 
latitude,  under  the  same  description  as  the  aforesaid  grant 
was  made  to  the  first  colony.  To  these  grants  a  considera 
tion  was  annexed,  that  a  plantation  should  not  be  made  within 
one  hundred  miles  of  a  prior  plantation. 

By  the  same  charter,  the  King  agreed  that  he  would  give 
and  grant,  by  letters  patent,  to  such  persons,  their  heirs,  and 
assigns,  as  the  council  of  each  colony,  or  the  most  part  of 
them,  should  nominate  or  assign,  all  the  lands,  tenements,  and 
hereditaments,  which  should  be  within  the  precincts  limited 
for  each  colony,  to  be  holden  of  him,  his  heirs  and  succes 
sors  as  for  the  manor  of  East  Greenwich,  in  the  county  of 
Kent,  in  free  and  common  soccage  only,  and  not  in  capite. 
And  that  such  letters  patent  should  be  sufficient  assurance 
from  the  patentees,  so  distributed  and  divided  amongst  the 
undertakers  for  the  plantations  of  the  several  colonies,  and 
such  as  should  make  their  plantations  in  either  of  the  said 
several  colonies  in  such  manner  and  form,  and  for  such  es 
tates,  as  shall  be  ordered,  and  set  down  by  the  council  of 
said  colony,  or  the  most  part  of  them,  respectively,  within 
which  the  same  lands,  tenements,  or  hereditaments,  shall  lie 
or  be :  although  express  mention  of  the  true  yearly  value  or 
certainty  of  the  premises,  or  any  of  them,  or  of  any  other 
gifts  or  grants,  by  the  King,  or  any  of  his  progenitors,  or 
predecessors,  to  the  guarantees  was  not  made,  or  any  statute, 
&c,  to  the  contrary  notwithstanding. 


DOCTRINES  OF  JOHN  MARSHALL          207 

On  the  23d  of  May,  1609,  King  James,  on  the  application  of 
the  first  colony  for  a  further  enlargement  and  explanation  of 
the  first  grant,  gave  them  a  second  charter,  in  which  they 
were  incorporated  by  the  name  of  "  The  Treasurer  and  Com 
pany  of  Adventurers  and  Planters  of  the  city  of  London,  for 
the  first  colony  of  Virginia." 

In  this  charter  the  King  grants  to  them  all  the  lands,  &c, 
in  that  part  of  America  called  Virginia,  from  the  point  of 
land  called  Cape  or  Point  Comfort,  all  along  the  seacoast, 
to  the  northward,  two  hundred  miles;  and  from  the  said 
Point  of  Cape  Comfort,  all  along  the  seacoast,  to  the  south 
ward,  two  hundred  miles;  and  all  that  space  and  circuit  of 
land,  lying  from  the  seacoast  of  the  precinct  aforesaid  up  into 
the  main  land  throughout,  from  sea  to  sea,  west  and  north 
west;  and  also  all  the  islands  within  one  hundred  miles  along 
the  coast  of  both  seas  of  the  precinct  aforesaid. 

On  the  I2th  of  March,  1611-12,  on  the  representation  that 
there  were  several  islands  without  the  foregoing  grant,  and 
contiguous  to  the  coast  of  Virginia,  and  on  the  request  of 
the  said  first  colony,  for  an  enlargement  of  the  former  let 
ters  patent,  as  well  as  for  more  ample  extent  of  their  limits 
and  territories  in  to  the  seas  adjoining  to  and  upon  the  coast 
of  Virginia,  as  for  the  better  government  of  the  said  colony, 
King  James  granted  them  another  charter.  After  reciting 
the  description  of  the  second  grant,  he  then  proceeds  to  give, 
grant,  and  confirm,  to  the  Treasurer  and  Company  of  Ad 
venturers  and  Planters  of  the  city  of  London  for  the  first 
colony  of  Virginia,  and  their  heirs,  &c.  "  all  and  singular 
those  islands,  whatsoever,  situate  and  being  in  any  part  of  the 
ocean,  seas,  bordering  on  the  coast  of  our  said  first  colony 
in  Virginia,  and  being  within  three  hundred  leagues  of  any 
of  the  parts  heretofore  granted  to  the  said  Treasurer  and 
Company  in  said  former  letters  patent  as  aforesaid,  and  be 
ing  within  the  one-and-fortieth  and  thirtieth  degrees  of  north 
erly  latitude,  with  all  the  lands,  &c.  both  within  the  said  tract 
of  land  on  the  main,  and  also  within  the  said  islands  and 
seas  adjoining,  &c.  Provided,  always,  That  the  said  islands, 
or  any  premises  herein  mentioned,  or  by  these  presents  in 
tended,  or  meant  to  be  conveyed,  be  not  actually  possessed 
or  inhabited  by  any  other  Christian  Prince  or  State;  nor  be 


208  THE  POLITICAL  AND  ECONOMIC 

within  the  bounds,  limits,  or  territories,  of  the  northern  col 
ony,  heretofore  by  us  granted,  to  be  planted  by  divers  of  our 
loving  subjects  in  the  north  part  of  Virginia. 

On  the  1 5th  day  of  July,  1624,  James  I.  granted  a  com 
mission  for  the  government  of  Virginia,  in  which  it  is  al 
leged  that  the  charters  to  the  Treasurer  and  Company  of 
Adventurers  and  Planters  of  the  city  of  London,  for  the  first 
colony  of  Virginia,  had  been  avoided  upon  a  quo  warranto 
brought,  and  a  legal  and  judicial  proceeding  therein  by  due 
course  of  law. 

On  the  2Oth  day  of  August,  1624,  James  granted  another 
commission  for  the  government  of  Virginia,  in  which  it  is 
alleged  "  Whereupon  we,  entering  into  mature  and  deliberate 
consideration  of  the  premises,  did,  by  the  advice  of  our  Lords 
of  the  Privy  Council,  resolve,  by  altering  the  charters  of  the 
said  company,  as  to  the  point  of  government,  wherein  the 
same  might  be  found  defective,  to  settle  such  a  course  as 
might  best  secure  the  safety  of  the  people  there,  and  cause 
the  said  plantation  to  flourish;  and,  yet,  with  the  preserva 
tion  of  the  interests  of  every  planter  and  adventurer,  so  far 
north  as  their  present  interests  shall  not  prejudice  the  public 
plantations;  but  because  the  said  Treasurer  and  Company  did 
not  submit  their  charters  to  be  reformed,  our  proceedings 
therein  were  stayed  for  a  time,  until,  upon  quo  warranto 
brought,  and  a  legal  and  judicial  proceeding  therein,  by  due 
course  of  law,  the  said  charters  were,  and  now  are,  and  stand 
avoided." 

On  the  1 3th  of  May,  1625,  Charles  I.  by  his  proclamation, 
after  alleging  that  the  letters  patent,  to  the  colony  of  Virginia, 
had  been  questioned  in  a  legal  course,  and  thereupon  judi 
cially  repealed,  and  judged  to  be  void,  declares  that  the  gov 
ernment  of  the  colony  of  Virginia,  shall  immediately  depend 
on  himself,  and  not  be  committed  to  any  company  or  cor 
poration. 

From  this  time  Virginia  was  considered  to  be  a  royal  Gov 
ernment,  and  it  appears  that  the  Kings  of  England,  from  time 
to  time,  granted  commissions  for  the  government  of  the 
same. 

The  right  of  making  grants  of  land  was  vested  in  and 
solely  exercised  by  the  Crown. 

The   Colonies  of   Maryland,    North  and   South   Carolina, 


DOCTRINES  OF  JOHN  MARSHALL          209 

Georgia,  and  part  of  Pennsylvania,  were  erected  by  the  Crown, 
within  the  chartered  limits  of  the  first  colony  of  Virginia. 

When  the  King  of  France  had  dominions  in  North  Amer 
ica,  the  land  in  question  was  included  in  the  province  of 
Louisiana,  but  no  part  of  it  was  actually  settled  by  any  of  his 
subjects.  After  the  conquest  of  the  French  possessions  in 
North  America  by  Great  Britain,  this  tract  was  ceded  to  the 
King  of  Great  Britain,  by  the  treaty  of  Paris,  in  1763. 

In  the  year  1774,  the  Parliament  of  Great  Britain  passed 
an  act,  declaring  and  enacting  "  That  all  the  territories,  is 
lands,  and  countries,  in  North  America,  belonging  to  the 
Crown  of  Great  Britain,  bounded  on  the  south  by  a  line  from 
the  bay  of  Chaluers,  along  the  high  lands  which  divide  the 
rivers  that  empty  themselves  into  the  river  St.  Lawrence,  from 
those  that  fall  into  the  sea,  to  a  point  in  forty-five  degrees  of 
north  latitude  on  the  eastern  bank  of  the  river  Connecticut, 
keeping  the  same  latitude  directly  west,  through  the  lake 
Champlain,  until  in  the  same  latitude  it  meets  the  river  St. 
Lawrence;  from  thence,  up  the  eastern  branch  of  said  river  to 
the  lake  Ontario ;  thence  through  the  lake  Ontario  and  the  river 
commonly  called  Niagara;  and  thence,  along  by  the  eastern 
and  southwestern  bank  of  lake  Erie,  following  the  bank  until 
the  same  shall  be  intersected  by  the  northern  boundary,  granted 
by  the  charter  of  the  province  of  Pennsylvania,  in  case  the 
same  shall  so  be  intersected;  and  from  thence,  along  the  said 
northern  and  western  boundaries  of  said  province,  until  the 
said  western  boundary  strike  the  Ohio.  But  in  case  the  said 
bank  of  the  said  lake  shall  not  be  found  to  be  so  intersected, 
then,  following  the  said  bank,  until  it  shall  arrive  at  the  point 
of  the  said  bank,  which  shall  be  nearest  to  the  northwestern 
angle  of  the  said  province  of  Pennsylvania!  and  thence  by  a 
right  line  to  the  said  northwestern  angle  of  said  province; 
and  thence,  along  the  western  boundary  of  said  province,  un 
til  it  shall  strike  the  river  Ohio,  and  along  the  bank  of  the 
said  river,  westward,  to  the  banks  of  the  Mississippi ;  and 
northward  to  the  southern  boundary  of  the  territory  granted 
to  the  Merchants,  adventurers  of  England,  trading  to  Hud 
son's  Bay;  and,  also,  all  such  territories,  islands,  and  coun 
tries,  which  have,  since  the  loth  of  February,  1763,  been 
made  part  of  the  government  of  Newfoundland,  be,  and  they 
are  hereby,  during  His  Majesty's  pleasure,  annexed  to  and 


210  THE  POLITICAL  AND  ECONOMIC 

made  part  and  parcel  of  the  province  of  Quebec,  as  created 
and  established  by  the  said  royal  proclamation  of  the  7th  of 
October,  1763. 

"  Provided,  always,  That  nothing  herein  contained  rela 
tive  to  the  boundary  of  the  province  of  Quebec  shall  in  any 
wise  affect  the  boundaries  of  any  other  colony. 

"  Provided,  always,  and  be  it  enacted,  That  nothing  in  this 
act  contained  shall  extend,  or  be  construed  to  extend,  to  make 
void,  or  to  vary,  or  alter  any  right,  title,  or  possession  de 
rived  under  any  grant,  conveyance,  or  otherwise  howsoever 
of,  or  to  any  lands  within  the  said  province  or  provinces 
thereto  adjoining;  but  that  the  same  shall  be  in  force  and  have 
effect  as  if  this  act  had  never  been  made." 

In  the  year  1620,  on  the  3d  of  November,  King  James  gave 
a  charter  to  the  second  colony  of  Virginia :  after  reciting  the 
grants  made  to  the  first  colony  of  Virginia,  and  stating  an 
application  from  the  second  colony  for  a  further  enlarge 
ment  of  priviledges,  he  proceeded  to  declare  "  that  the  tract 
of  land,  in  America,  between  the  fortieth  and  forty-eighth  de 
grees  of  north  latitude,  from  sea  to  sea,  should  be  called  New 
England;  and  for  the  planting  and  governing  the  same,  he 
incorporated  a  council  at  Plymouth,  in  the  county  of  Devon, 
and  granted  to  them  and  their  successors,"  all  that  part  of 
America,  lying  and  being  in  breadth,  from  forty  degrees  of 
northerly  latitude,  from  the  equinoctial  line,  to  forty-eight  de 
grees  of  said  northerly  latitude  inclusively,  and  in  length 
of,  and  within  all  the  said  breadth  aforesaid,  throughout  all 
the  main  lands  from  sea  to  sea,  together  with  all  the  firm  lands, 
&c.  upon  the  main,  within  the  said  islands  and  seas  adjoining. 
Provided,  the  said  islands,  or  any  of  the  premises  before  men 
tioned,  and  intended  by  said  charter  to  be  granted,  be  not 
actually  possessed  or  inhabited  by  any  Christian  Prince  or 
State,  nor  be  within  the  bounds,  limits,  or  territories  of  the 
Southern  colony,  granted  to  be  planted  in  the  south  part.  King 
James,  by  said  charter,  commanded  and  authorized  said  council 
at  Plymouth,  or  their  successors,  or  the  major  part  of  them  to 
distribute  and  assign  such  portions  of  land  to  adventurers,  &c. 
as  they  should  think  proper. 

In  the  year  1628,  4th  March,  the  council  of  Plymouth,  pur 
suant  to  the  authority  vested  in  them  by  their  charter,  granted 
to  Sir  Henry  Roswell,  and  others,  a  tract  of  land  called  Massa- 


DOCTRINES  OF  JOHN  MARSHALL          211 

chusetts :  and  King  Charles  I.  on  the  4th  of  March,  1629,  con 
firmed  the  sale,  and  granted  them  a  charter.  After  reciting  the 
description  of  the  grant  to  the  council  of  Plymouth,  and  their 
grant  to  Sir  Henry  Roswell,  and  others,  he  grants  and  confirms 
to  them,  Cl  all  that  part  of  New  England  in  America,  which 
lies  and  extends  between  a  great  river  there  commonly  called 
Morromack  river,  alias  Merrimack  river,  and  a  certain  other 
river  there  called  Charles  river,  being  in  the  bottoms  of  a  cer 
tain  bay,  there  called  Massachusetts,  alias  Mattachusetts,  alias 
Massactusetts  bay;  and  also  all  and  singular  those  lands  and 
hereditaments  whatsoever,  lying  within  the  space  of  three  Eng 
lish  miles,  on  the  south  part  of  the  said  river,  called  Charles 
river,  or  of  any  or  every  part  thereof ;  and  also  all  and  singular, 
the  lands  and  hereditaments  whatsoever,  lying  and  being  within 
the  space  of  three  English  miles  to  the  southward  of  the 
southernmost  parts  of  the  said  bay,  called  Massachusetts,  alias 
Mattachusetts,  alias  Massachusetts  bay;  and  also  all  those 
lands  and  hereditaments  whatsoever,  which  lie  and  be,  within 
the  space  of  three  English  miles  to  the  northward  of  said 
river,  called  Morromack,  alias  Merrimack;  or  to  the  north 
ward  of  any  and  every  part  thereof;  and  all  lands  and  heredi 
taments  whatsoever,  lying  within  the  limits  aforesaid,  north 
and  south,  in  latitude  and  in  breadth,  and  in  length  and  longi 
tude  of,  and  within  all  the  breadth  aforesaid,  throughout  the 
mainlands  there,  from  the  Atlantic  and  Western  sea  and  ocean 
on  the  east  part  to  the  South  sea  on  the  west  part,  with  a 
proviso  not  to  extend  to  lands  possessed  by  a  Christian  Prince, 
or  within  the  limits  of  the  southern  colony." 

In  the  year  1631,  on  the  igth  of  March,  the  Earl  of  War 
wick  granted  to  Lord  Say  and  Seal,  and  others,  all  that  part  of 
New  England  in  America  which  lies  and  extends  itself  from  a 
river  there  called  Narraganset  river,  the  space  of  forty  leagues, 
upon  a  straight  line  near  the  sea  shore,  towards  the  southwest, 
west  and  by  south  or  west  as  the  coast  lieth  towards  Virginia, 
accounting  three  English  miles  to  the  league,  and  also  all  and 
singular  the  lands  and  hereditaments  whatsoever,  lying  and 
being  within  the  lands  aforesaid,  north  and  south,  in  latitude 
and  breadth,  and  in  length  and  longitude  of,  and  within  all  the 
breadth  aforesaid,  throughout  the  main  lands  there,  from 
the  Western  ocean  to  the  South  sea,  &c.  and  also  all  the  islands, 
lying  in  America,  aforesaid  in  said  seas,  or  either  of  them,  on 


212  THE  POLITICAL  AND  ECONOMIC 

the  western  or  eastern  coasts,  &c.  The  territory  aforesaid 
having  been  in  the  year  preceding  by  the  council  of  Plymouth 
granted  to  said  Earl  of  Warwick. 

In  1635,  the  7th  of  June,  the  council  of  Plymouth,  after  hav 
ing  made  sundry  other  grants,  surrendered  their  charter  to  the 
Crown. 

In  the  year  1635,  Lord  Say  and  Seal,  and  other  associates, 
appointed  John  Winthrop  their  governor  and  agent,  to  enter 
upon  and  take  possession  of  their  territory,  which  he  accord 
ingly  did,  and  began  a  settlement  near  the  mouth  of  Connecti 
cut  river.  About  the  same  time,  a  number  of  English  colonists 
emigrated  from  the  Massachusetts  to  Connecticut  river,  and 
after  having  found  themselves  to  be  without  the  patent  of  that 
colony,  formed  into  a  political  association  by  the  name  of  the 
Colony  of  Connecticut,  and  purchased  of  Lord  Say  and  Seal, 
and  others,  their  grant  from  the  Earl  of  Warwick,  made  in 
1631 ;  and  in  1661  petitioned  King  Charles  the  II.  setting  forth 
their  colonization,  their  adoption  of  a  voluntary  form  of  Gov 
ernment,  their  grant  from  Lord  Say  and  Seal,  and  others,  and 
their  acquisition  by  purchase  and  conquest,  and  praying  him 
to  give  them  a  charter  of  Government,  agreeably  to  the  system 
they  had  adopted  with  power  equal  to  those  conferred  on  Mas 
sachusetts,  or  the  lords  and  gentlemen  whose  jurisdiction  right 
they  had  purchased,  and  to  confirm  the  grant  or  patent  which 
they  had  obtained  as  aforesaid  of  the  assigns  of  the  Plymouth 
council,  according  to  the  tenor  of  a  draft  or  instrument,  which 
they  say  was  ready  to  be  tendered  at  his  gracious  order. 

King  Charles  II.  referring  to  the  facts  stated  in  the  petition 
aforesaid,  granted  a  charter,  dated  the  23d  of  April  1662,  in 
which  he  constituted  and  declared  John  Winthrop  and  others 
his  associates,  a  body  corporate  and  politic,  by  the  name  of  the 
Governor  and  Company  of  the  English  Colony  of  Connecticut 
in  New  England  in  America,  with  privileges  and  powers  of  gov 
ernment,  and  granted  and  confirmed  to  the  said  Governor  and 
company  and  their  successors  all  that  part  of  his  dominions  in 
New  England  in  America,  bounded  on  the  east  by  Narraganset 
river,  commonly  called  Narraganset  bay,  where  the  said  river 
falls  into  the  sea;  and  on  the  north  by  the  line  of  Massachu 
setts  plantation,  and  on  the  south  by  the  sea,  and  in  longitude  as 
the  line  of  Massachusetts  colony,  running  from  east  to  west, 
that  is  to  say,  from  the  said  Narraganset  bay  on  the  east,  to  the 


DOCTRINES  OF  JOHN  MARSHALL          213 

South  sea,  on  the  west,  with  the  islands  thereto  adjoining; 
(which  is  the  present  charter  of  Connecticut.) 

On  the  23d  of  April,  1664,  King  Charles  addressed  a  letter  to 
the  Governor  and  Company  of  Connecticut,  in  which,  among 
other  things,  he  speaks  of  having  renewed  their  charter. 

On  the  1 2th  of  March,  1664,  Charles  II.  granted  to  James, 
Duke  of  York,  "  all  that  part  of  the  main  land  in  New  England, 
beginning  at  a  certain  place  called  and  known  by  the  name  of 
St.  Croix,  next  adjoining  to  New  Scotland  in  America,  and 
from  thence  extending  along  the  sea  coast,  unto  a  place  called 
Pennique,  or  Pennequid,  and  so  up  the  river  thereof  unto  the 
furthermost  head  of  the  same,  as  it  tendeth  northward,  and  ex 
tending  from  thence  unto  the  river  Kennebequie,  and  upwards 
by  the  shortest  course  to  the  river  called  Canada,  northward; 
and  also  all  that  island  or  islands,  called  by  the  several  name 
or  names  of  Mattawacks,  or  Long  Island,  situate,  lying,  and 
being  towards  the  west  of  Cape  Cod  and  the  Narragansets, 
abutting  on  the  main  lands,  between  the  two  rivers  there  called 
and  known  by  the  names  of  Connecticut,  and  Hudson's  river, 
together  also  with  the  said  river  called  Hudson's  river, 
and  all  the  lands  from  the  west  side  of  Connecticut  river  to  the 
east  side  of  Delaware  bay,  and  all  the  several  islands,  &c. 

As  the  charter  to  the  Duke  of  York  covered  part  of  the 
lands  included  in  the  charter  of  Connecticut,  and  as  a  part 
of  the  country  had  been  settled  by  Christian  nations  prior  to  the 
Charter  of  Connecticut,  for  which  an  exception  had  been  made 
in  the  charter  to  the  council  of  Plymouth,  though  not  in  that 
to  Connecticut ;  a  dispute  arose  between  the  Duke  of  York  and 
the  people  of  Connecticut,  respecting  the  bounds  of  their  re 
spective  grants.  King  Charles  II.  having  appointed  Richard 
Nichols,  and  others,  commissioners  to  visit  the  New  England 
colonies,  with  power  to  hear  and  determine  all  complaints  and 
appeals,  and  proceed  in  all  things  for  providing  for  and  settling 
the  peace  of  said  country. 

On  the  1 3th  of  October,  1664,  the  General  Assembly  of  the 
colony  of  Connecticut  appointed  agents  to  wait  on  said  commis- 
Isioners,  which  appointment  was  expressed  in  the  following 
I  terms,  to  wit:  Mr.  Allen,  &c.  are  desired  to  accompany  the 
I  Governor  to  New  York  to  congratulate  His  Majesty's  honor 
able  commissioners,  and  if  an  opportunity  offers  itself,  that  they 
lean  issue  the  bounds  between  the  Duke's  patent  and  ours  (so  as 


2i4  THE  POLITICAL  AND  ECONOMIC 

in  their  judgment  may  be  for  the  satisfaction  of  the  court)  they 
are  empowered  to  attend  to  the  same,  &c.  Said  commissioners 
undertook  the  settlement  of  said  bounds,  and  on  the  3Oth  of 
November,  1664,  determined  as  follows: 

"  By  virtue  of  His  Majesty's  commission,  we  have  heard  the 
difference  about  the  bounds  of  the  patent  granted  to  the  Duke 
of  York,  and  the  colony  of  Connecticut,  and  having  considered 
the  same,  &c.  we  do  declare,  and  order,  the  southern  bound  of 
His  Majesty's  colony  is  the  sea,  and  that  Long  Island  is  to  be 
under  the  government  of  His  Royal  Highness  the  Duke  of 
York,  as  is  expressed  by  plain  words  in  said  charters  respec 
tively.  And  also  by  virtue  of  His  Majesty's  commission,  and 
by  consent  of  both  the  Governors  and  gentlemen  above  named, 
we  do  also  order  and  declare  that  the  creek  or  river  which 
is  called  Monoromock,  which  is  reputed  to  be  about  twelve 
miles  to  the  east  of  Westchester  and  a  line  to  be  drawn  from 
the  east  point  or  side  where  the  fresh  water  falls  into  the 
salt,  at  high-water  mark,  north  northwest  to  the  line  of  the 
Massachusetts,  be  the  western  bound  of  said  colony  of  Con 
necticut,  and  all  plantations  lying  westward  of  that  creek 
and  line  so  drawn  shall  be  under  His  Royal  Highness's  govern 
ment  ;  and  all  plantations  lying  eastward  of  that  creek  and  line 
to  be  under  the  government  of  Connecticut." 

To  this  the  commissioners  from  Connecticut  subscribed 
in  the  following  manner,  viz: 

"  We  the  underwritten,  on  behalf  of  the  colony  of  Con 
necticut,  have  assented  unto  the  determination  of  His  Ma 
jesty's  commissioners  in  relation  to  the  bounds  and  limits 
of  His  Royal  Highness  the  Duke's  patent  and  the  patent 
of  Connecticut." 

This  was  a  settlement  of  boundary  between  the  interfering 
charter  of  Connecticut  and  that  of  the  Duke  of  York,  as  it 
respected  the  eastern  extent  of  the  latter. 

New  York  being,  in  June  1673,  recovered  by  the  Dutch,  and 
their  Government  revived,  was,  in  1674,  ceded  on  a  treaty  of 
peace.  The  Duke  obtained  a  renewal  of  his  patent,  and 
claimed  a  re-settlement  of  the  same,  which  was  finally  ef 
fected  in  1733,  when  Biram  river,  the  present  line,  was  es 
tablished. 

Charles  the  second,  on  the  4th  day  of  March  1681,  granted 
to  William  Penn,  the  first  proprietary  and  Governor  of  Penn- 


DOCTRINES  OF  JOHN  MARSHALL          215 

sylvania,  all  that  tract  or  part  of  land  in  America,  with  the 
islands  therein  contained,  as  the  same  is  bounded,  on  the 
east  by  the  Delaware  river,  from  twelve  miles  distance,  north 
ward  of  Newcastle  town,  unto  the  three-and-fortieth  degree 
of  northern  latitude,  if  said  river  doth  extend  so  far  north 
ward;  but  if  the  said  river  shall  not  extend  so  far  northward, 
then,  by  the  said  river  so  far  as  it  doth  extend,  and  from  the 
head  of  the  said  river,  the  eastern  bounds  are  to  be  determined 
by  a  meridian  line,  to  be  drawn  from  the  head  of  said  river, 
unto  the  said  forty-third  degree;  the  said  land  to  extend 
westward  five  degrees  in  longitude,  to  be  computed  from  the 
said  eastern  bounds;  and  the  said  lands  to  be  bounded  on 
the  north  by  the  beginning  of  the  three-and-fortieth  degree 
of  northern  latitude;  and  on  the  south  by  a  circle  drawn  at 
twelve  miles  distance  from  Newcastle,  northward  and  west 
ward,  unto  the  beginning  of  the  fortieth  degree  of  northern 
latitude;  and  then  by  a  straight  line,  westward,  to  the  limits 
of  longitude  above  mentioned. 

On  the  27th  of  November,  1779,  the  Legislature  of  Penn 
sylvania  vested  the  estate  of  the  proprietaries  in  the  Common 
wealth. 

The  charter  of  Pennsylvania  comprehended  a  part  of  the 
land  included  in  the  charter  of  Connecticut,  viz :  between  the 
forty-first  and  forty-second  degrees  of  north  latitude,  in  con 
sequence  of  which  a  dispute  arose  respecting  the  right  of 
soil  and  jurisdiction. 

This  dispute  came  to  a  final  decision  before  a  court  of  com 
missioners  appointed  pursuant  to  the  articles  of  confedera 
tion,  on  the  3Oth  day  of  December,  1782,  when  it  was 
determined  that  the  State  of  Connecticut  had  no  right  to  the 
lands  included  in  the  charter  of  Pennsylvania;  and  that  the 
State  of  Pennsylvania  had  the  right  of  jurisdiction  and  pre 
emption. 

The  State  of  Connecticut  acquiesced  in  the  decision  afore 
said,  respecting  the  lands  claimed  by  Pennsylvania,  and  the 
court  of  commissioners  having  final  jurisdiction,  the  claim 
of  Connecticut  respecting  both  soil  and  jurisdiction  is  con 
clusively  settled.  But  Connecticut  did  not  abandon  her  claim 
to  lands  west  of  Pennsylvania,  and  at  a  General  Assembly, 
holden  at  New  Haven  on  the  second  Thursday  of  October, 
1783,  the  following  act  was  passed,  viz.  "  Whereas  this 


216  THE  POLITICAL  AND  ECONOMIC 

State  has  the  undoubted  and  exclusive  right  of  jurisdiction 
and  pre-emption  to  all  the  lajids  lying  west  of  the  western 
limits  of  the  State  of  Pennsylvania,  and  east  of  the  river 
Mississippi,  and  extending  throughout  from  the  latitude  41° 
to  latitude  42°  and  2'  north,  by  virtue  of  the  charter  granted 
by  King  Charles  the  Second  to  the  late  colony,  now  State  of 
Connecticut,  bearing  date  the  23d  day  of  April,  A.D.  1662, 
which  claim  and  title  to  make  known,  for  the  information  of 
all,  to  the  end  that  they  may  conform  themselves  thereto. 

"  Resolved,  That  his  excellency  the  Governor  be  desired 
to  issue  his  proclamation,  declaring  and  asserting  the  right  of 
this  State  to  all  the  lands  within  the  limits  aforesaid;  and 
strictly  forbidding  all  persons  to  enter  or  settle  thereon,  with 
out  special  license  and  authority  first  obtained  from  the  Gen 
eral  Assembly  of  this  State." 

Pursuant  to  this  resolution,  Governor  Trumbull  issued  a 
proclamation,  bearing  date  the  I5th  day  of  November,  1783, 
making  known  the  determination  of  the  State  to  maintain 
their  claim  to  said  territory,  and  forbidding  all  persons  to 
enter  thereon,  or  settle  within  the  limits  pf  the  same. 

On  the  29th  of  April,  1784,  Congress  adopted  the  following 
resolutions : 

Congress,  by  their  resolution  of  September  6th,  1780,  having 
thought  it  advisable  to  press  upon  the  States  having  claims 
to  the  Western  country  a  liberal  surrender  of  a  portion  of 
their  territorial  claims ;  by  that  of  the  loth  of  October  in  the 
same  year,  having  fixed  conditions  to  which  the  Union  should 
be  bound  on  receiving  such  cessions;  and  having  again  pro 
posed  the  same  subject  to  those  States  in  their  address  of 
April  the  i8th,  1783,  wherein,  stating  the  national  debt,  and 
expressing  their  reliance  for  its  discharge,  on  the  prospect  of 
vacant  territory  in  aid  of  other  resources,  they,  for  that  pur 
pose  as  well  as  to  obviate  disagreeable  controversies  and  con 
fusions,  included  in  the  same  recommendations  a  renewal  of 
those  of  September  6th,  and  of  October  the  loth,  1780,  which 
several  recommendations  have  not  yet  been  fully  complied 
with. 

Resolved,  That  the  same  subject  be  again  presented  to  the 
said  States ;  that  they  be  urged  to  consider,  that  the  war  being 
now  brought  to  a  happy  termination,  by  the  personal  services 
of  our  soldiers,  the  supplies  of  property  by  our  citizens,  and 


DOCTRINES  OF  JOHN  MARSHALL          217 

loans  of  money  from  them  as  well  as  foreigners ;  these  several 
creditors  have  a  right  to  expect  that  funds  will  be  provided, 
on  which  they  may  rely  for  indemnification ;  that  Congress 
still  consider  vacant  territory  as  an  important  resource;  and 
that,  therefore,  said  States  be  earnestly  pressed  by  immediate 
and  liberal  cessions  to  forward  these  necessary  ends,  and  to 
promote  the  harmony  of  the  Union. 

The  State  of  Connecticut,  prior  to  the  decree  of  Trenton, 
offered  to  make  a  cession  of  Western  territory,  but  under 
such  restrictions  that  Congress  refused  to  accept  the  same. 
In  consequence  of  the  above  recommendation  of  Congress,  the 
Legislature  of  Connecticut  resumed  the  consideration  of  a 
cession  of  their  Western  territory:  and,  at  a  General  Assembly 
of  the  State,  on  the  second  Thursday  of  May,  1786,  passed 
the  following  act : 

"  Be  it  enacted  by  the  Governor,  Council,  and  Representa 
tives,  in  general  court  assembled,  and  by  the  authority  of  the 
same,  That  the  delegates  of  this  State,  or  any  two  of  them, 
who  shall  be  attending  the  Congress  of  the  United  States,  be, 
and  they  are  hereby  directed,  authorized,  and  fully  empowered, 
in  the  name  and  behalf  of  this  State,  to  make,  execute,  and  de 
liver,  under  their  hands  and  seals  an  ample  deed  of  release 
and  cession  of  all  the  right,  title,  interest,  jurisdiction,  and 
claim  of  the  State  of  Connecticut,  to  certain  Western  lands, 
beginning  at  the  completion  of  the  forty-first  degree  of  north 
latitude,  one  hundred  and  twenty  miles  west  of  the  western 
boundary  line  of  the  Commonwealth  of  Pennsylvania,  as  now 
claimed  by  said  Commonwealth;  and  from  thence  by  a  line 
to  be  drawn  north  parallel  to,  and  one  hundred  and  twenty 
miles  west  of  the  said  west  line  of  Pennsylvania,  and  to  con 
tinue  north  until  it  comes  to  42°  and  2'  north  latitude:  where 
by  all  the  right,  title,  interest,  jurisdiction,  and  claim  of  the 
State  of  Connecticut  to  the  lands  lying  west  of  the  said  line, 
to  be  drawn,  as  aforementioned,  one  hundred  and  twenty  miles 
west  of  the  western  boundary  line  of  the  Commonwealth  of 
Pennsylvania,  as  now  claimed  by  said  Commonwealth,  shall 
be  included,  released,  and  ceded  to  the  United  States  in  Con 
gress  assembled,  for  the  common  use  and  benefit  of  said 
States,  Connecticut  inclusive." 

On  the  26th  of  May,  1786,  Congress  resolved,  "  that  Con 
gress,  in  behalf  of  the  United  States,  are  ready  to  accept 


218  THE  POLITICAL  AND  ECONOMIC 

all  the  right,  title,  interest,  jurisdiction,  and  claim  of  the 
State  of  Connecticut  to  certain  western  lands,  beginning  at 
the  cempletion  of  the  forty-first  degree  of  north  latitude,  one 
hundred  and  twenty  miles  west  of  the  western  boundary  line 
of  the  Commonwealth  of  Pennsylvania,  as  now  claimed  by 
said  Commonwealth ;  and  from  thence,  by  a  line  to  be  drawn 
north  parallel  to,  and  one  hundred  and  twenty  miles  west  of 
the  said  west  line  of  Pennsylvania,  and  to  continue  north  until 
it  comes  to  forty-two  degrees  two  minutes  north  latitude, 
whenever  the  delegates  of  Connecticut  shall  be  furnished  with 
full  powers,  and  shall  execute  a  deed  for  that  purpose." 

On  the  1 4th  of  September,  1786,  the  delegates  from  Con 
necticut  executed  a  deed  of  cession  agreeably  to  the  above 
resolution,  and  it  was  resolved  "  that  Congress  accept  the 
said  deed  of  cession,  and  that  the  same  be  recorded  and  en 
rolled  among  the  acts  of  the  United  States  in  Congress  as 
sembled." 

The  cession  from  Connecticut  was  accepted  by  Congress 
in  the  same  manner  and  form  as  the  cessions  from  Virginia, 
New  York,  and  Massachusetts. 

The  Legislature  of  Connecticut,  on  the  second  Thursday  of 
October,  1786,  passed  an  act  directing  the  survey  of  that 
part  of  their  western  territory  not  ceded  to  Congress,  lying 
west  of  Pennsylvania,  and  east  of  the  river  Cayahoga,  to  which 
the  Indian  right  had  been  extinguished;  and  by  the  same  act, 
opened  a  land  office  for  the  sale  thereof.  Under  this  act,  a 
part  of  said  tract  was  sold. 

The  Legislature  of  Connecticut,  in  1792,  granted  five  hun 
dred  thousand  acres  of  said  territory,  being  the  west  part 
thereof,  to  certain  citizens  of  the  State,  as  a  compensation 
for  property  burned  and  destroyed  in  the  towns  of  New  Lon-^ 
don,  New  Haven,  Fairfield,  and  Norwalk,  by  the  British 
troops  in  the  war  between  the  United  States  of  America  and 
Great  Britain.  Many  transfers  of  parts  of  this  land  have  been 
made  for  valuable  considerations. 

In  May  1795,  the  Legislature  of  Connecticut  passed  a 
resolve  in  the  words  following: 

"  Resolved  by  the  Assembly,  That  a  committee  be  appointed 
to  receive  any  proposals  that  may  be  made  by  any  person 
or  persons,  whether  inhabitants  of  the  United  States,  or  others, 
for  the  purchase  of  the  lands  belonging  to  this  State  lying 


DOCTRINES  OF  JOHN  MARSHALL          219 

west  of  the  west  line  of  Pennsylvania,  as  claimed  by  said 
State.  And  the  said  committee  are  hereby  fully  authorized 
and  empowered,  in  the  name  and  behalf  of  this  State,  to 
negotiate  with  any  such  person  or  persons,  on  the  subject  of 
any  such  proposals,  and  also  to  form  and  complete  any  con 
tract  or  contracts  for  the  sale  of  the  said  lands,  and  to  make 
and  execute,  under  their  hands  and  seals,  to  the  purchaser  or 
purchasers,  a  deed  or  deeds  duly  authenticated,  quitting,  in 
behalf  of  this  State,  all  right,  title,  and  interest,  juridical  and 
territorial,  in  and  to  said  lands  to  him  or  them,  and  to  his 
and  their  heirs  forever. 

"  That  before  the  executing  of  such  deed  or  deeds,  the 
purchaser  or  purchasers  shall  give  their  personal  note  or  bond, 
payable  to  the  Treasurer  of  this  State,  for  the  purchase  money, 
carrying  an  interest  of  six  per  centum  per  annum,  payable  an 
nually,  to  commence  from  the  date  thereof,  or  from  some  future 
period,  not  exceeding  two  years  from  the  date,  as  circum 
stances,  in  the  opinion  of  the  committee,  may  require,  and  as 
may  be  agreed  on  between  them  and  the  said  purchaser  or  pur 
chasers,  with  good  and  sufficient  sureties,  inhabitants  of  this 
State ;  or  with  a  sufficient  deposit  of  bank  stock,  or  other  stock 
of  the  United  States,  or  the  particular  States;  which  note  or 
bond  shall  be  taken,  payable  at  a  period  not  more  remote  than 
five  years  from  the  date,  or  if  by  annual  installments,  so  that 
the  last  installment  be  made  payable  within  ten  years  from  the 
date,  either  in  specie,  or  six  per  cent.,  three  per  cent.,  or 
deferred  stock  of  the  United  States,  at  the  discretion  of  the 
committee. 

"  That  if  the  said  committee  shall  find  that  it  will  be  most 
beneficial  to  the  State  or  its  citizens,  to  form  several  contracts 
for  the  sale  of  the  said  lands,  they  shall  not  consumate  any 
of  the  said  contracts  apart  by  themselves,  while  the  others 
lie  in  a  train  of  negotiations  only;  but  all  the  contracts,  which, 
taken  together,  shall  comprise  the  whole  of  the  quantity  of  the 
said  lands,  shall  be  consumated  together,  and  the  purchasers 
shall  hold  their  respective  parts,  or  proportions,  as  tenants 
in  common  of  the  whole  tract,  or  territory,  and  not  in  sever 
ally. 

'  That  the  said  committee,  in  whatever  manner  they  shall 
find  it  best  to  sell  the  said  lands,  shall,  in  no  case,  be  at  liberty 
to  sell  the  whole  quantity  for  a  principal  sum  less  than  one 


220  THE  POLITICAL  AND  ECONOMIC 

million  of  dollars  in  specie,  with  interest  at  six  per  cent,  per 
annum  from  the  time  of  such  sale." 

The  Legislature,  at  the  same  time,  appointed  a  committee 
to  sell  said  lands,  who  advertised  the  same  in  various  news 
papers  in  the  United  States,  and  particularly  in  the  Gazette 
of  the  United  States,  published  in  Philadelphia. 

Said  committee  sold  said  lands  to  sundry  citizens  of  Con 
necticut,  and  of  other  States,  for  the  sum  of  one  million  two 
hundred  thousand  dollars;  and  on  the  Qth  day  of  September, 
1795,  executed  to  the  several  purchasers,  deeds  quitting  to 
them  and  their  heirs  forever,  all  right,  title,  and  interest  jurid 
ical  and  territorial  of  the  State  of  Connecticut,  to  lands  be 
longing  to  said  State,  lying  west  of  the  west  line  of 
Pennsylvania,  as  claimed  by  said  State. 

The  Legislature  of  Connecticut  have  appropriated  the  money 
arising  on  the  sale  of  said  lands,  for  the  support  of  schools, 
and  have  pledged  the  annual  interest  as  a  perpetual  fund  for 
that  purpose.  The  proprietors  have  paid  the  principal  part  of 
two  years'  interest  to  the  State,  making  about  the  sum  of  one 
hundred  thousand  dollars. 

The  purchasers  have  surveyed  into  townships  of  five  miles 
square,  the  whole  of  said  tract  lying  east  of  the  river  Caya- 
hoga,  and  to  which  the  Indian  right  has  been  extinguished; 
they  have  made  divisions  thereof  according  to  their  respective 
proportions ;  commenced  settlements  in  thirty-five  of  said  town 
ships  ;  and  there  are  actually  settled  therein  about  one  thousand 
inhabitants.  A  number  of  mills  have  been  built,  and  roads 
cut  in  various  directions  through  said  territory,  to  the  extent 
of  about  seven  hundred  miles;  numerous  sales  and  transfers 
of  the  lands  have  been  made,  and  the  proprietors,  in  addition 
to  the  payments  of  interest  aforesaid,  have  already  expended 
about  the  sum  of  eighty  thousand  dollars. 

While  the  State  of  Connecticut  was  making  a  disposition 
of  said  territory,  the  following  acts  took  place  in  the  Govern 
ment  of  the  United  States. 

In  the  report  of  the  Secretary  of  State,  respecting  the 
quantity  and  situation  of  the  lands  not  claimed  by  the  Indians, 
nor  granted  to,  nor  claimed  by  any  of  the  citizens  of  the 
United  States  within  the  territory  ceded  to  the  United  States 
by  the  State  of  North  Carolina,  and  within  the  territory  of 


DOCTRINES  OF  JOHN  MARSHALL  221 

the  United  States  northwest  of  the  river  Ohio,  are  the  follow 
ing  clauses : 

Under  the  head  of  lands  reserved  by  States  in  their  deeds 
of  cession,  it  is  said,  "  the  tract  of  country  presents  itself  from 
the  completion  of  the  forty-first  degree  to  forty-second  degree 
two  minutes  of  North  latitude,  and  extending  to  the  Pennsyl 
vania  line  before  mentioned,  one  hundred  and  twenty  miles 
westward,  not  mentioned  in  the  deed  of  Connecticut,  while  all 
the  country  westward  thereof  was  mentioned  to  be  ceded ; 
about  two  and  a  half  millions  of  acres  of  this  may,  perhaps, 
be  without  the  Indian  lines  before  mentioned." 

In  the  act  of  Congress  passed  May  i8th,  1796,  entitled  "  An 
act  providing  for  the  sale  of  the  lands  of  the  United  States 
northwest  of  the  river  Ohio,  and  above  the  mouth  of  the 
Kentucky  river,"  is  the  following  section : 

Sec.  4.  Be  it  further  enacted,  That  whenever  seven  ranges 
of  townships  shall  have  been  surveyed  below  the  Great  Miami, 
or  between  the  Scioto  river  and  the  Ohio  company's  purchase, 
or  between  the  southern  boundary  of  the  Connecticut  claims, 
and  the  ranges  already  laid  off,  beginning  upon  the  Ohio 
river,  and  extending  westwardly;  and  the  plats  thereof  made 
and  transmitted,  in  conformity  to  the  provisions  of  this  act, 
the  said  section  of  the  six  hundred  and  forty  acres  (excluding 
those  hereby  reserved)  shall  be  offered  for  sale  at  public 
vendue,  under  the  direction  of  the  Governor,  or  Secretary  of 
the  Western  Territory,  and  the  Surveyor  General ;  such  of 
them  as  lie  below  the  Great  Miami,  shall  be  sold  at  Cincinnati ; 
those  of  them  that  lie  between  the  Scioto  and  the  Ohio  Com 
pany's  purchase,  at  Pittsburg;  and  those  between  the  Connecti 
cut  claim  and  seven  ranges  at  Pittsburg,  &c." 

On  the  2ist  of  January,  1799,  Mr.  Read,  from  a  committee 
to  whom  was  referred  a  bill  to  accept  a  cession  from  Connecti 
cut  of  the  Western  Reserve,  made  a  report  to  the  Senate, 
which  was  as  follows : 

At  a  meeting  of  commissioners  from  sundry  of  the  then 
colonies  at  Albany,  on  Tuesday,  the  9th  of  July,  it  was,  among 
other  things,  agreed  and  resolved,  as  follows : 

That  His  Majesty's  title  to  the  northern  continent  of  Amer 
ica  appears  to  be  founded  on  the  discovery  thereof  first  made, 


222  THE  POLITICAL  AND  ECONOMIC 

and  the  possession  thereof  first  taken  in  1497,  under  a  commis 
sion  from  Henry  VII.  of  England,  to  Sebastian  Cabot.  That 
the  French  have  possessed  themselves  of  several  parts  of  this 
continent,  which,  by  treaties,  have  been  ceded  and  confirmed  to 
them. 

That  the  right  of  the  English  to  the  whole  seacoast  from 
Georgia  on  the  south,  to  the  river  St.  Lawrence  on  the  north, 
excepting  the  island  of  Cape  Breton,  and  the  islands  in  the 
Bay  of  St.  Lawrence,  remains  indisputable. 

That  all  the  lands  or  countries  westward  from  the  Atlantic 
Ocean  to  the  South  Sea,  between  48  and  34°  north  latitude, 
was  expressly  included  in  the  grant  of  King  Charles  I.  to  divers 
of  his  subjects,  so  long  since  as  the  year  1606,  and  afterwards 
confirmed  in  1620,  and  under  this  grant  the  colony  of  Virginia 
claims  extent  as  far  west  as  the  South  Sea;  and  the  ancient 
colonies  of  the  Massachusetts  Bay  and  Connecticut  were  by 
their  respective  charters  made  to  extend  to  the  said  South 
Sea;  and  so  that  not  only  the  right  of  the  seacoast,  but  to  all 
the  inland  countries  from  sea  to  sea,  has,  at  all  times,  been 
asserted  by  the  Crown  of  England. 

In  1754,  some  settlements  were  made  from  Connecticut  on 
lands  on  the  Susquehanna,  about  Wyoming,  within  the  char 
tered  limits  of  Pennsylvania,  and  also  within  the  chartered 
limits  claimed  by  Connecticut,  which  produced  a  letter  from  the 
Governor  of  Connecticut  to  the  Governor  of  Pennsylvania,  of 
which  the  following  is  an  extract : 

"  WINDSOR,  March  13,  1754. 

'  There  being  now  no  unimpropriated  lands  with  us,  some 
of  our  inhabitants,  hearing  of  this  land  at  Susquehanna,  and 
that  it  was  north  of  the  grant  made  to  Mr.  Penn  and  that  to 
Virginia,  are  upon  a  design  of  making  a  purchase  from  the 
Indians,  and  hope  to  obtain  a  grant  of  it  from  the  Crown. 
But  Mr.  Armstrong  informs  me  that  this  land  is  certainly 
within  Mr.  Penn's  grant.  If  so,  I  don't  suppose  our  people 
had  any  purpose  to  quarrel  with  Pennsylvania.  Indeed,  I 
don't  know  the  mind  of  every  private  man,  but  I  never  heard 
our  leading  men  express  themselves  so  inclined." 

On  the  same  day,  Lieutenant  Governor  Fitch  wrote  from 
Hartford  a  letter  on  the  same  subject,  of  which  the  following 
is  an  extract: 


DOCTRINES  OF  JOHN  MARSHALL          223 

"  I  do  well  approve  of  the  notice  you  take  of  the  attempt 
some  of  the  people  of  this  colony  are  making,  and  the  concern 
you  manifest  for  the  general  peace,  &c.  I  know  nothing  of 
any  thing  done  by  the  Government  to  countenance  such  a  pro 
cedure  as  you  intimate,  and,  I  conclude,  is  going  on  among 
some  of  our  people.  I  shall,  in  all  proper  ways,  use  my  in 
terest  to  prevent  every  thing  that  may  tend  to  prejudice  the 
general  good  of  these  governments,  and  am  inclined  to  believe 
that  this  wild  scheme  of  our  people  will  come  to  nothing, 
though  I  can't  certainly  say." 

At  a  General  Assembly  for  Connecticut,  holden  in  May,  1755, 
the  Susquehanna  Company,  as  were  styled  those  who  were 
seating  lands  on  that  river  west  of  New  York,  and  within  the 
boundaries  claimed  by  Pennsylvania  and  Connecticut,  pre 
sented  a  petition  praying  the  assent  of  the  Legislature  to  a 
petition  to  His  Majesty  for  a  new  colony  within  the  chartered 
limits  of  Connecticut,  and  describing  the  lands  lying  west  of 
New  York;  whereupon,  the  Assembly  of  Connecticut,  after 
reciting  the  said  petition,  came  to  the  following  resolution  : 

Resolved,  by  this  Assembly,  That  they  are  of  opinion  that 
the  peaceably  and  orderly  erecting  and  carrying  on  some  new 
and  well  regulated  colony  or  plantation  on  the  lands  above 
mentioned  would  tend  to  fix  and  secure  said  Indian  nations 
in  allegiance  to  His  Majesty  and  friendship  with  his  subjects; 
and  accordingly  hereby  manifest  their  ready  acquiescence 
therein,  if  it  should  be  His  Majesty's  royal  pleasure  to  grant 
said  land  to  said  petitioners,  and  thereon  erect  and  settle  a 
new  colony,  in  such  form  and  under  such  regulations  as  might 
be  consistent  with  his  royal  wisdom;  and  also  take  leave 
humbly  to  recommend  the  said  petitioners  to  his  royal  favor  in 
the  premises. 

On  the  3  ist  of  August,  1779,  an  agreement  was  concluded 
between  commissioners  duly  appointed  for  that  purpose  by 
the  States  of  Virginia  and  Pennsylvania,  respectively,  whereby 
it  was  agreed  "  That  the  line  commonly  called  Mason's  and 
Dixon's  line  be  extended  due  west  five  degrees  of  longitude 
to  be  computed  from  the  river  Delaware,  for  the  southern 
boundary  of  Pennsylvania ;  and  that  a  meridian  drawn  from  the 
western  extremity  thereof  to  the  northern  limits  of  the  said 
States,  respectively,  be  the  western  boundary  of  Pennsylvania 
forever;  "  which  agreement  was  ratified  and  finally  confirmed 


224          DOCTRINES  OF  JOHN  MARSHALL 

by  the  Legislature  of  Pennsylvania,  by  resolution  bearing  date 
the  3d  day  of  September,  1780,  and  by  the  State  of  Virginia 
on  the  day  of  178 —  See  Journal  of  Pennsylvania  As 
sembly,  vol.  i  page  519. 

On  the  6th  day  of  June,  1788,  Congress  directed  the  geog 
rapher  of  the  United  States  to  ascertain  the  boundary  line  be 
tween  the  United  States  and  the  States  of  New  York  and  Mass 
achusetts,  agreeably  to  the  deeds  of  cession  of  the  said  States, 
and  also  directed  that  the  meridian  line  between  lake  Erie  and 
the  State  of  Pennsylvania  being  run,  the  land  lying  west  of  said 
line,  and  between  the  State  of  Pennsylvania  and  lake  Erie, 
should  be  surveyed,  and  return  thereof  made  to  the  Board 
of  Treasury,  who  were  authorized  to  make  sale  thereof. 

The  said  land  having  been  sold,  in  conformity  with  the 
above  mentioned  resolution,  to  the  State  of  Pennsylvania, 
Congress,  on  the  3d  day  of  September,  1788,  passed  a  resolu 
tion  relinquishing  and  transferring  all  the  right,  title,  and 
claim,  of  the  United  States  to  the  government  and  jurisdiction 
of  the  said  tract  of  land,  to  the  State  of  Pennsylvania  forever. 

As  the  purchasers  of  the  land  commonly  called  the  Connecti 
cut  Reserve  hold  their  title  under  the  State  of  Connecticut, 
they  cannot  submit  to  the  Government  established  by  the  United 
States  in  the  Northwestern  territory,  without  endangering 
their  titles,  and  the  jurisdiction  of  Connecticut  could  not  be 
extended  over  them  without  much  inconvenience.  Finding 
themselves  in  this  situation,  they  have  applied  to  the  Legisla 
ture  of  Connecticut  to  cede  the  jurisdiction  of  the  said  territory 
of  the  United  States.  In  pursuance  of  such  application,  the 
Legislature  of  Connecticut,  in  the  month  of  October,  1797, 
passed  an  act  authorizing  the  Senators  of  the  said  State  in 
Congress  to  execute  a  deed  of  release  in  behalf  of  said  State 
to  the  United  States  of  the  jurisdiction  of  said  territory. 

The  committee  are  of  opinion  that  the  cession  of  juris 
diction  offered  by  the  State  of  Connecticut  ought  to  be  ac 
cepted  by  the  United  States,  on  the  terms  and  conditions  speci 
fied  in  the  bill  which  accompanies  this  report.1 

1  The  above  letter  is  printed  in  "  The  American  State  Papers,"  Class 
VIII,  Public  Lands,  Vol.  I.  Washington:  Published  by  Gales  and  Sea- 
ton,  1832. 


CHAPTER  V 

THE  SPEECHES   OF   JOHN    MARSHALL 

JOHN  MARSHALL  was  not  a  great  speechmaker ;  in  his  time 
there  were  many  great  orators  such  as  Patrick  Henry,  Daniel 
Webster,  and  many  others,  but  he  did  not  speak  unless  he  was 
almost  pressed  to  do  so.  However,  when  he  did  speak  it  was 
with  great  eloquence,  as  all  records  of  the  Conventions  at 
which  he  spoke  testify,  and  his  speech  on  the  death  of  Wash 
ington  shows  that  he  was  filled  with  a  great  emotion  that  he 
was  capable  of  expressing. 

In  one  of  Marshall's  letters  you  will  notice  that  he  said  he 
never  wished  to  appear  in  print  if  he  could  help  it.  It  seems 
that  the  same  rule  might  have  been  his  in  regard  to  oratory, — 
that  he  never  wished  to  be  heard  on  the  public  platform  if  he 
could  in  some  manner  avoid  it. 

Webster  and  Henry  never  missed  an  opportunity  to  air  their 
views,  and  no  doubt  this  is  the  case  with  every  man  who  has 
the  oratorical  habit,  and  who  can  find  an  appreciative  au 
dience.  But  Marshall's  method  was  different;  he  believed  in 
doing  his  work  in  a  silent  way,  and  in  this  way  he  accomplished 
a  great  deal,  to  the  discomfiture  of  those  who  were  opposed  to 
him. 

SPEECH  OF  THE  HONORABLE  JOHN  MARSHALL, 
Delivered  in  the  House  of  Representatives  of  the  United  States,  on  the 
Resolutions  of  the  Honorable  Edward  Livingston,  relative  to 
Thomas  Nash,  alias  Jonathan  Robbins 

The  case  is  that  Thomas  Nash,  having  committed  a  murder 
on  board  a  British  frigate,  navigating  the  high  seas  under  a 
commission  from  his  Britannic  Majesty,  had  sought  an  asylum 
within  the  United  States,  and  on  this  case  his  delivery  was  de 
manded  by  the  minister  of  the  King  of  Great  Britain. 

Mr.  Marshall  said :  — Believing  as  he  did  most  seriously, 
that  in  a  government  constituted  like  that  of  the  United  States, 
much  of  the  public  happiness  depended,  not  only  on  its  being 
rightly  administered,  but  on  the  measures  of  administration  be- 

225 


226  THE  POLITICAL  AND  ECONOMIC 

ing  rightly  understood :  on  rescuing  public  opinion  from  those 
numerous  prejudices  with  which  so  many  causes  might  com 
bine  to  surround  it :  he  could  not  but  have  been  highly  gratified 
with  the  very  eloquent,  and  what  was  still  more  valuable,  the 
very  able,  and  very  correct  argument,  which  had  been  delivered 
by  the  gentleman  from  Delaware  [Mr.  Bayard]  against  the 
resolutions  now  under  consideration.  He  had  not  expected 
that  the  effect  of  this  argument  would  have  been  universal, 
but  he  had  cherished  the  hope,  and  in  this  he  had  not  been  dis 
appointed,  that  it  would  be  very  extensive.  He  did  not  flatter 
himself  with  being  able  to  shed  much  new  light  on  the  subject ; 
but  as  the  argument  in  opposition  to  the  resolutions  has  been 
assailed,  with  considerable  ability,  by  gentlemen  of  great  tal 
ents,  he  trusted  the  house  would  not  think  the  time  misapplied 
which  would  be  devoted  to  the  reestablishment  of  the  princi 
ples  contained  in  that  argument,  and  to  the  refutation  of  those 
advanced  in  opposition  to  it.  In  endeavoring  to  do  this,  he 
should  notice  the  observation  in  support  of  the  resolutions,  not 
in  the  precise  order  in  which  they  were  made,  but  as  they  ap 
plied  to  the  different  points  he  deemed  it  necessary  to  main 
tain,  in  order  to  demonstrate  that  the  conduct  of  the  executive 
of  the  United  States  could  not  justly  be  charged  with  the  er 
rors  imputed  to  it  by  the  resolutions. 

His  first  proposition,  he  said,  was,  that  the  case  of  Thomas 
Nash,  as  stated  to  the  President,  was  completely  within  the 
twenty-seventh  article  of  the  treaty  of  amity,  commerce,  and 
navigation,  entered  into  between  the  United  States  of  America 
and  Great  Britain. 

He  read  the  article,  and  then  observed :  The  casus  foederis 
of  this  article  occurs,  when  a  person,  having  committed  murder 
or  forgery  within  the  jurisdiction  of  one  of  the  contracting 
parties,  and  having  sought  asylum  in  the  country  of  the  other, 
is  charged  with  the  crime,  and  his  delivery  demanded,  on  such 
proof  of  his  guilt  as,  according  to  the  laws  of  the  place  where 
he  shall  be  found,  would  justify  his  apprehension  and 
commitment  for  trial,  if  the  offense  had  there  been  commit 
ted. 

The  case  stated  is,  that  Thomas  Nash,  having  committed  a 
murder  on  board  a  British  frigate,  navigating  the  high  seas 
under  a  commission  from  His  Britannic  Majesty,  had  sought 
an  asylum  within  the  United  States,  and  on  this  case  his  de- 


DOCTRINES  OF  JOHN  MARSHALL          227 

livery  was  demanded  by  the  Minister  of  the  King  of  Great 
Britain. 

It  is  manifest  that  the  case  stated,  if  supported  by  proof,  is 
within  the  letter  of  the  article,  provided  a  murder  committed 
in  a  British  frigate,  on  the  high  seas,  be  committed  within  the 
jurisdiction  of  that  nation. 

That  such  a  murder  is  within  their  jurisdiction,  has  been 
fully  shown  by  the  gentleman  from  Delaware.  The  principle 
is,  that  the  jurisdiction  of  a  nation  extends  to  the  whole  of  its 
territory,  and  to  its  own  citizens  in  every  part  of  the  world. 
The  laws  of  a  nation  are  rightfully  obligatory  on  its  own  citi 
zens  in  every  situation,  where  those  laws  are  really  extended  to 
them.  This  principle  is  founded  on  the  nature  of  civil  union. 
It  is  supported  everywhere  by  public  opinion,  and  is  recognized 
by  writers  on  the  law  of  nations.  Rutherforth,  in  his  second 
volume,  p.  180,  says:  "  The  jurisdiction  which  a  civil  so 
ciety  has  over  the  persons  of  its  members,  affects  them  im 
mediately,  whether  they  arejwithin  its  territories  or  not." 

This  general  principle  is  especially  true,  and  is  particularly 
recognized  with  respect  to  the  fleets  of  a  nation  on  the  high 
seas.  To  punish  offenses  committed  in  its  fleet,  is  the  practice 
of  every  nation  in  the  universe ;  and  consequently  the  opinion  of 
the  world  is,  that  a  fleet  at  sea  is  within  the  jurisdiction  of 
the  nation  to  which  it  belongs.  Rutherforth  Vol.  II,  p.  491, 
says :  "  There  can  be  no  doubt  about  the  jurisdiction  of  a  na 
tion  over  the  persons  which  compose  its  fleets,  when  they  are 
out  at  sea,  whether  they  are  sailing  upon  it,  or  are  stationed 
in  any  particular  part  of  it." 

The  gentleman  from  Pennsylvania  [Mr.  Gallatin],  though 
be  has  not  directly  controverted  this  doctrine,  has  sought  to 
weaken  it  by  observing  that  the  jurisdiction  of  a  nation  at  sea 
could  not  be  complete  even  in  its  own  vessels ;  and  in  support  of 
this  position,  he  urged  the  admitted  practice  of  submitting  to 
search  for  contraband ;  a  practice  not  tolerated  on  land,  within 
the  territory  of  a  neutral  power.  The  rule  is  as  stated,  but  is 
founded  on  a  principle  which  does  not  affect  the  jurisdiction 
of  a  nation  over  its  citizens  or  subjects  in  its  ships.  The 
principle  is,  that  in  the  sea  itself  no  nation  has  any  jurisdiction. 
All  may  equally  exercise  their  rights,  and  consequently  the 
right  of  a  belligerent  power  to  prevent  aid  being  given  to  his 
enemy,  is  not  restrained  by  any  superior  right  of  a  neutral  in 


228  THE  POLITICAL  AND  ECONOMIC 

the  place.  But  if  this  argument  possessed  any  force,  it  would 
not  apply  to  national  ships  of  war,  since  the  usage  of  nations 
does  not  permit  them  to  be  searched. 

According  to  the  practice  of  the  world,  then,  and  the  opin 
ions  of  writers  on  the  law  of  nations,  the  murder  committed 
on  board  a  British  frigate,  navigating  the  high  seas,  was  a 
murder  committed  within  the  jurisdiction  of  the  British  na 
tion. 

Although  such  a  murder  is  plainly  within  the  letter  of  the 
article,  it  has  been  contended  not  to  be  within  its  just  construc 
tion;  because,  at  sea,  all  nations  have  a  common  jurisdiction, 
and  the  article  correctly  construed,  will  not  embrace  a  case  of 
concurrent  jurisdiction. 

It  is  deemed  unnecessary  to  controvert  this  construction, 
because  the  proposition,  that  the  United  States  had  no  juris 
diction  over  the  murder  committed  by  Thomas  Nash,  is  be 
lieved  to  be  completely  demonstrable. 

It  is  not  true  that  all  nations  have  jurisdiction  over  all  of 
fenses  committed  at  sea.  On  the  contrary,  no  nation  has  any 
jurisdiction  at  sea,  but  over  its  own  citizens  or  vessels,  or  of 
fenses  against  itself.  This  principle  is  laid  down  in  2  Ruth. 
488,  491. 

The  American  government  has,  on  a  very  solemn  occasion, 
avowed  the  same  principle.  The  first  minister  of  the  French 
republic  asserted  and  exercised  powers  of  so  extraordinary 
a  nature  as  unavoidably  to  produce  a  controversy  with  the 
United  States.  The  situation  in  which  the  government  then 
found  itself  was  such  as  necessarily  to  occasion  a  very  serious 
and  mature  consideration  of  the  opinions  it  should  adopt. 
Of  consequence,  the  opinions  then  declared  deserve  great  re 
spect.  In  the  case  alluded  to,  Mr.  Genet  had  asserted  the  right 
of  fitting  out  privateers  in  the  American  ports,  and  of  manning 
them  with  American  citizens,  in  order  to  cruise  against  na 
tions  with  whom  America  was  at  peace.  In  reasoning  against 
this  extravagant  claim,  the  then  Secretary  of  State,  in  his  letter 
of  the  1 7th  of  June,  1793,  says:  "  For  our  citizens,  then,  to 
commit  murders  and  depredations  on  the  members  of  nations  at 
peace  with  us,  or  to  combine  to  do  it,  appeared  to  the  executive 
and  to  those  whom  they  consulted,  as  much  against  the  laws 
of  the  land  as  to  murder  or  rob,  or  combine  to  murder  or  rob, 
its  own  citizens;  and  as  much  to  require  punishment,  if  done 


DOCTRINES  OF  JOHN  MARSHALL          229 

within  their  limits,  where  they  have  a  territorial  jurisdiction, 
or  on  the  high  seas,  where  they  have  a  personal  jurisdiction, 
that  is  to  say,  one  which  reaches  their  own  citizens  only;  this 
being  an  appropriate  part  of  each  nation,  on  an  element  where 
all  have  a  common  jurisdiction." 

The  well  considered  opinion,  then,  of  the  American  govern 
ment  on  this  subject  is,  that  the  jurisdiction  of  a  nation  at 
sea  is  "  personal,"  reaching  its  "  own  citizens  only,"  and  that 
this  is  "  the  appropriate  part  of  each  nation  "  on  that  element. 

This  is  precisely  the  opinion  maintained  by  the  opposers  of 
the  resolutions.  If  the  jurisdiction  of  America  at  sea  be 
personal,  reaching  its  own  citizens  only;  if  this  be  its  appro 
priate  part,  then  the  jurisdiction  of  the  nation  cannot  extend  to 
a  murder  committed  by  a  British  sailor,  on  board  a  British 
frigate  navigating  the  high  seas,  under  a  commission  from  His 
Britannic  Majesty. 

As  a  further  illustration  of  the  principle  contended  for, 
suppose  a  contract  made  at  sea,  and  a  suit  instituted  for  the 
recovery  of  money  which  might  be  due  thereon.  By  the  laws 
of  what  nation  would  the  contract  be  governed?  The  prin 
ciple  is  general,  that  a  personal  contract  follows  the  person, 
but  is  governed  by  the  law  of  the  place  where  it  is  formed.  By 
what  law,  then,  would  such  a  contract  be  governed?  If  all 
nations  had  jurisdiction  over  the  place,  then  the  laws  of  all 
nations  would  equally  influence  the  contract;  but  certainly  no 
man  will  hesitate  to  admit  that  such  a  contract  ought  to  be 
decided  according  to  the  laws  of  that  nation  to  which  the  vessel 
or  contracting  parties  might  belong. 

Suppose  a  duel  attended  with  death,  in  the  fleet  of  a  foreign 
nation,  or  in  any  vessel  which  returned  safe  to  port ;  could  it  be 
pretended  that  any  government  on  earth,  other  than  that  to 
which  the  fleet  or  vessel  belonged,  had  jurisdiction  in  the 
case ;  or  that  the  offender  could  be  tried  by  the  laws  or  tribunals 
of  any  other  nation  whatever? 

Suppose  a  private  theft  by  one  mariner  from  another,  and 
the  vessel  to  perform  its  voyage  and  return  in  safety,  would  it 
be  contended  that  all  nations  have  equal  cognizance  of  the 
crime,  and  are  equally  authorized  to  punish  it  ? 

If  there  be  this  common  jurisdiction  at  sea,  why  not  punish 
desertion  from  one  belligerent  power  to  another,  or  correspond 
ence  with  the  enemy,  or  any  other  crime  which  may  be  per- 


23o  THE  POLITICAL  AND  ECONOMIC 

petrated?  A  common  jurisdiction  over  all  offenses  at  sea,  in 
whatever  vessel  committed,  would  involve  the  power  of  punish 
ing  the  offenses  which  have  been  stated.  Yet  all  gentlemen 
will  disclaim  this  power.  It  follows,  then,  that  no  such  com 
mon  jurisdiction  exists. 

In  truth,  the  right  of  every  nation  to  punish  is  limited,  in  its 
nature,  to  offenses  against  the  nation  inflicting  the  punishment. 
This  principle  is  believed  to  be  universally  true. 

It  comprehends  every  possible  violation  of  its  laws  on  its 
own  territory,  and  it  extends  to  violations  committed  elsewhere 
by  persons  it  has  a  right  to  bind.  It  extends  also  to  general 
piracy. 

A  pirate,  under  the  law  of  nations,  is  an  enemy  of  the  human 
race.  Being  the  enemy  of  all,  he  is  liable  to  be  punished  by 
all.  Any  act  which  denotes  this  universal  hostility  is  an  act  of 
piracy.  Not  only  an  actual  robbery  therefore,  but  cruising  on 
the  high  seas  without  a  commission,  and  with  intent  to  rob,  is 
piracy.  This  is  an  offense  against  all  and  every  nation,  and 
is  therefore  alike  punishable  by  all.  But  an  offense  which  in 
its  nature  affects  only  a  particular  nation,  is  only  punishable 
by  that  nation. 

It  is  by  confounding  general  piracy  with  piracy  by  statute, 
that  indistinct  ideas  have  been  produced,  respecting  the  power 
to  punish  offenses  committed  on  the  high  seas. 

A  statute  may  make  any  offense  piracy,  committed  within 
the  jurisdiction  of  the  nation  passing  the  statute,  and  such 
offense  will  be  punishable  by  that  nation.  But  piracy  under 
the  law  of  nations,  which  alone  is  punishable  by  all  nations, 
can  only  consist  in  an  act  which  is  an  offense  against  all. 
No  particular  nation  can  increase  or  diminish  the  list  of 
offenses  thus  punishable. 

It  had  been  observed  by  his  colleague  (Mr.  Nicholas),  for 
the  purpose  of  showing  that  the  distinction  taken  on  this  sub 
ject  by  the  gentleman  from  Delaware  (Mr.  Bayard)  was  inac 
curate,  that  any  vessel  robbed  on  the  high  seas  could  be  the 
property  only  of  a  single  nation,  and  being  only  an  offense 
against  that  nation,  could  be,  on  the  principle  taken  by  the 
opposers  of  the  resolutions,  no  offense  against  the  law  of  na 
tions;  but  in  this  his  colleague  had  not  accurately  considered 
the  principle.  As  a  man,  who  turns  out  to  rob  on  the  highway, 
and  forces  from  a  stranger  his  purse  with  a  pistol  at  his  bosom, 


DOCTRINES  OF  JOHN  MARSHALL          231 

is  not  the  particular  enemy  of  that  stranger ;  but  alike  the  enemy 
of  every  man  who  carries  a  purse,  so  those  who,  without  a  com 
mission,  rob  on  the  high  seas,  manifest  a  temper  hostile  to  all 
nations,  and  therefore  become  the  enemies  of  all.  The  same 
inducements  which  occasion  the  robbery  of  one  vessel,  exist  to 
occasion  the  robbery  of  others,  and  therefore  the  single  offense 
is  an  offense  against  the  whole  community  of  nations,  manifests 
a  temper  hostile  to  all,  is  the  commencement  of  an  attack  on  all, 
and  is  consequently,  of  right,  punishable  by  all. 

His  colleague  had  also  contended,  that  all  the  offenses  at  sea, 
punishable  by  the  British  statutes,  from  which  the  act  of  Con 
gress  was  in  a  great  degree  copied,  were  piracies  at  common 
law,  or  by  the  law  of  nations,  and  as  murder  is  among  these, 
consequently  murder  was  an  act  of  piracy  by  the  law  of  nations, 
and  therefore  punishable  by  every  nation.  In  support  of  this 
position,  he  had  cited  i  Hawk.,  P.  C,  267,  271 ;  3  Inst.,  112, 
and  i  Woodeson,  140. 

The  amount  of  these  cases  is,  that  no  new  offense  is  made 
piracy  by  the  statutes;  but  that  a  different  tribunal  is  created 
for  their  trial,  which  is  guided  by  a  different  rule  from  that 
which  governed  previous  to  those  statutes.  Therefore,  on  an 
indictment  for  piracy,  it  is  still  necessary  to  prove  an  offense 
which  was  piracy  before  the  statutes.  He  drew  from  these 
authorities  a  very  different  conclusion  from  that  which  had 
been  drawn  by  his  colleague.  To  show  the  correctness  of  his 
conclusion,  it  was  necessary  to  observe,  that  the  statute  did  not, 
indeed,  change  the  nature  of  piracy,  since  it  only  transferred 
the  trial  of  the  crime  to  a  different  tribunal,  where  different 
rules  of  decision  prevailed ;  but  having  done  this,  other  crimes 
committed  on  the  high  seas,  which  were  not  piracy,  were  made 
punishable  by  the  same  tribunal ;  but  certainly  this  municipal 
regulation  could  not  be  considered  as  proving  that  those 
offenses  were,  before,  piracy  by  the  law  of  nations.  Mr. 
Nicholas  insisted  that  the  law  was  not  correctly  stated ;  where 
upon  Mr.  Marshall  called  for  3  Inst.  and  read  the  Statute. 

"  All  treasons,  felonies,  robberies,  murders,  and  confeder 
acies,  committed  in  or  upon  the  seas,  &c.,  shall  be  inquired, 
tried,  heard,  determined,  and  judged  in  such  shires,  &c.,  in  like 
form  and  condition  as  if  any  such  offense  had  been  committed 
on  the  land,  &c. 

"  And  such  as  shall  be  convicted,  &c.,  shall  have  and  suffer 


232  THE  POLITICAL  AND  ECONOMIC 

such  pains  of  death,  &c.,  as  if  they  had  been  attainted  of  any 
treason,  felony,  robbery,  or  other  of  the  said  offenses  done  upon 
the  land." 

This  statute,  it  is  certain,  does  not  change  the  nature  of 
piracy;  but  all  treasons,  felonies,  robberies,  murders  and  con 
federacies  committed  in  or  upon  the  sea,  are  not  declared  to 
have  been,  nor  are  they,  piracies.  If  a  man  be  indicted  as  a 
pirate,  the  offense  must  be  shown  to  have  been  piracy  before  the 
statute;  but  if  he  be  indicted  for  treason,  felony,  robbery,  mur 
der,  or  confederacy  committed  at  sea,  whether  such  offense  was 
or  was  not  a  piracy,  he  shall  be  punished  in  like  manner  as  if 
he  had  committed  the  same  offense  on  land.  The  passage  cited 
from  i  Woodeson,  140,  is  a  full  authority  to  this  point.  Hav 
ing  stated  that  offenses  committed  at  sea  were  formerly  triable 
before  the  Lord  High  Admiral,  according  to  the  course  of  the 
Roman  civil  law,  Woodeson  says,  "  but  by  the  statute  27H. 
VIII. ,  ch.  4,  and  28H.  VIII.,  ch.  15,  all  treasons,  felonies, 
piracies,  and  other  crimes  committed  on  the  sea,  or  where  the 
admiral  has  jurisdiction,  shall  be  tried  in  the  realm  as  if  done 
on  land.  But  the  statutes  referred  to  affect  only  the  manner 
of  the  trial  so  far  as  respects  piracy.  The  nature  of  the  offense 
is  not  changed.  Whether  a  cHarge  amounts  to  a  piracy  or 
not,  must  still  depend  on  the  law  of  nations,  except  where,  in 
the  case  of  British  subjects,  express  acts  of  Parliament  have 
declared  that  the  crimes  therein  specified  shall  be  adjudged 
piracy,  or  shall  be  liable  to  the  same  mode  of  trial  and  degree 
of  punishment." 

This  passage  proves  not  only,  that  all  offenses  at  sea  are  not 
piracies  by  the  law  of  nations,  but  also  that  all  indictments  for 
piracy  must  depend  on  the  law  of  nations,  "  except  where, 
in  the  case  of  British  subjects,  express  acts  of  Parliament  "  have 
changed  the  law.  Why  do  not  these  "  express  acts  of  Parlia 
ment  "  change  the  law  as  to  others  than  "  British  subjects?  " 
The  words  are  general ;  "  all  treasons,  felonies,"  &c.  Why  are 
they  confined  in  construction  to  British  subjects?  The  answer 
is  a  plain  one.  The  jurisdiction  of  the  nation  is  confined  to  its 
territory  and  to  its  subjects. 

The  gentleman  from  Pennsylvania  [Mr.  Gallatin]  aban 
dons,  and  very  properly  abandons,  this  untenable  ground.  He 
admits  that  no  nation  has  a  right  to  punish  offenses  against 
another  nation,  and  that  the  United  States  can  only  punish 


DOCTRINES  OF  JOHN  MARSHALL          233 

offenses  against  their  own  laws,  and  the  law  of  nations.  He 
admits,  too,  that  if  there  had  only  been  a  mutiny  (and  conse 
quently  if  there  had  only  been  a  murder)  on  board  the  Her- 
moine,  that  the  American  courts  could  have  taken  no  cognizance  . 
of  the  crime.  Yet  mutiny  is  punishable  as  piracy  by  the  law  of  ) 
both  nations.  That  gentleman  contends  that  the  act  committed 
by  Nash  was  piracy  according  to  the  law  of  nations.  He  sup 
ports  his  position  by  insisting  that  the  offense  may  be  consti 
tuted  by  the  commission  of  a  single  act;  that  unauthorized 
robbery  on  the  high  seas  is  this  act,  and  that  the  crew  having 
seized  the  vessel,  and  being  out  of  the  protection  of  any  nation, 
were  pirates. 

It  is  true  that  the  offense  may  be  completed  by  a  single  act ; 
but  it  depends  on  the  nature  of  that  act.  If  it  be  such  as  mani 
fests  general  hostility  against  the  world  —  an  intention  to  rob 
generally  —  then  it  is  piracy;  but  if  it  be  merely  a  mutiny  and 
murder  in  a  vessel,  for  the  purpose  of  delivering  it  up  to  the 
enemy,  it  seems  to  be  an  offense  against  a  single  nation,  and  not 
to  be  piracy.  The  sole  object  of  the  crew  might  be  to  go  over  to 
the  enemy,  or  to  free  themselves  from  the  tyranny  experienced 
on  board  a  ship  of  war,  and  not  to  rob  generally. 

But  should  it  even  be  true  that  running  away  with  the  vessel 
to  deliver  her  up  to  an  enemy  was  an  act  of  general  piracy, 
punishable  by  all  nations,  yet  the  mutiny  and  murder  was  a  dis 
tinct  offense.  Had  the  attempt  to  seize  the  vessel  failed  after 
the  commission  of  the  murder,  then,  according  to  the  argument 
of  the  gentleman  from  Pennsylvania,  the  American  courts 
could  have  taken  no  cognizance  of  the  crime.  Whatever,  then, 
might  have  been  the  law  respecting  the  piracy,  of  the  murder 
there  was  no  jurisdiction.  For  the  murder,  not  the  piracy, 
Nash  was  delivered  up.  Murder,  and  not  piracy,  is  compre 
hended  in  the  twenty-seventh  article  of  the  treaty  between  the 
two  nations.  Had  he  been  tried  then,  and  acquitted  on  an  in 
dictment  for  the  piracy,  he  must  still  have  been  delivered  up 
for  the  murder,  of  which  the  court  could  have  no  jurisdiction. 
It  is  certain  that  an  acquittal  of  the  piracy  would  not  have 
discharged  the  murder;  and,  therefore,  in  the  so  much  relied 
on  trials  at  Trenton,  a  separate  indictment  for  murder  was 
foled  after  an  indictment  for  piracy.  Since,  then,  if  acquitted 
for  piracy,  he  must  have  been  delivered  to  the  British  govern 
ment  on  the  charge  of  murder,  the  President  of  the  United 


234  THE  POLITICAL  AND  ECONOMIC 

States  might,  very  properly,  without  prosecuting  for  the  piracy, 
direct  him  to  be  delivered  up  on  the  murder. 

All  the  gentlemen  who  have  spoken  in  support  of  the  resolu 
tions,  have  contended  that  the  case  of  Thomas  Nash  is  within 
the  purview  of  the  act  of  Congress  which  relates  to  this  subject, 
and  is  by  that  act  made  punishable  in  the  American  courts. 
This  is,  that  the  act  of  Congress  designed  to  punish  crimes 
committed  on  board  a  British  frigate. 

Nothing  can  be  more  completely  demonstrable  than  the  un 
truth  of  this  proposition. 

It  has  already  been  shown  that  the  legislative  jurisdiction  of 
a  nation  extends  only  to  its  own  territory,  and  to  its  own  cit 
izens,  wherever  they  may  be.  Any  general  expression  in  a  leg 
islative  act  must,  necessarily,  be  restrained  to  objects  within  the 
jurisdiction  of  the  legislature  passing  the  act.  Of  consequence, 
an  act  of  Congress  can  only  be  construed  to  apply  to  the  terri 
tory  of  the  United  States  comprehending  every  person  within 
it,  and  to  the  citizens  of  the  United  States. 

But  independent  of  this  undeniable  truth,  the  act  itself 
affords  complete  testimony  of  its  intention  and  extent.  (See 
Laws  of  the  U.  S.,  Vol  I.,  p.  10.) 

The  title  is,  "  An  act  for  the  punishment  of  certain  crimes 
against  the  United  States."  Not  against  Britain,  France,  or 
the  world,  but  singly  "  against  the  United  States." 

The  first  section  relates  to  treason,  and  its  objects  are,  "  any 
person  or  persons  owing  allegiance  to  the  United  States." 
This  description  comprehends  only  the  citizens  of  the  United 
States,  and  such  others  as  may  be  on  its  territory  or  in  its 
service. 

The  second  section  relates  to  misprision  of  treason,  and 
declares,  without  limitation,  that  any  person  or  persons,  having 
knowledge  of  any  treason,  and  not  communicating  the  same, 
shall  be  guilty  of  that  crime.  Here,  then,  is  an  instance  of  that 
limited  description  of  persons  in  one  section,  and  of  that  gen 
eral  description  in  another,  which  has  been  relied  on  to  support 
the  construction  contended  for  by  the  friends  of  the  resolutions. 
But  will  it  be  pretended  that  a  person  can  commit  misprision 
of  treason,  who  cannot  commit  treason  itself?  That  he  would 
be  punishable  for  concealing  a  treason,  who  could  not  be  pun 
ished  for  plotting  it?  Or  can  it  be  supposed  that  the  act 
designed  to  punish  an  Englishman  or  a  Frenchman,  who,  re- 


DOCTRINES  OF  JOHN  MARSHALL          235 

siding  in  his  own  country,  should  have  knowledge  of  treasons 
against  the  United  States,  and  should  not  cross  the  Atlantic 
to  reveal  them? 

The  same  observations  apply  to  the  sixth  section,  which 
makes  "  any  person  or  persons  "  guilty  of  misprision  of  felony, 
who  having  knowledge  of  murder  or  other  offenses  enumerated 
in  that  section,  should  conceal  them.  It  is  impossible  to  apply 
this  to  a  foreigner,  in  a  foreign  land,  or  to  any  person  not 
owing  allegiance  to  the  United  States. 

The  eighth  section,  which  is  supposed  to  comprehend  the 
case,  after  declaring  that  if  any  person  or  persons  shall  commit 
murder  on  the  high  seas,  he  shall  be  punishable  with  deaf 
proceeds  to  say,  that  if  any  captain  or  mariner  shall  piraticLdy 
run  away  with  a  ship  or  vessel,  or  yield  her  up  voluntarily  to  a 
pirate,  or  if  any  seaman  shall  lay  violent  hands  on  his  com 
mander,  to  prevent  his  fighting,  or  shall  make  a  revolt  in  the 
ship,  every  such  offender  shall  be  adjudged  a  pirate  and  a 
felon. 

The  persons  who  are  the  objects  of  this  section  of  the  act 
are  all  described  in  general  terms,  which  might  embrace  the 
subjects  of  all  nations.  But  is  it  to  be  supposed,  that  if,  in  an 
engagement  between  an  English  and  a  French  ship  of  war,  the 
crew  of  the  one  or  the  other  should  lay  violent  hands  on  the 
captain,  and  force  him  to  strike,  that  this  would  be  an  offense 
against  the  act  of  Congress,  punishable  in  the  courts  of  the 
United  States?  On  this  extended  construction  of  the  general 
terms  of  the  section,  not  only  the  crew  of  one  of  the  foreign 
vessels  forcing  their  captain  to  surrender  to  another,  would 
incur  the  penalties  of  the  act,  but  if,  in  the  late  action  between 
the  gallant  Truxton  and  a  French  frigate,  the  crew  of  that 
frigate  had  compelled  the  captain  to  surrender  while  he  was 
unwilling  to  do  so,  they  would  have  been  indictable  as  felons 
in  the  courts  of  the  United  States.  But  surely  the  act  of 
Congress  admits  of  no  such  extravagant  construction. 

His  colleagues,  Mr.  Marshall  said,  had  cited  and  particularly 
relied  on  the  ninth  section  of  the  act.  That  section  declares, 
that  if  a  citizen  shall  commit  any  of  the  enumerated  piracies,  or 
any  act  of  hostility  on  the  high  seas  against  the  United  States, 
under  color  of  a  commission  from  any  foreign  prince  or  state, 
he  shall  be  adjudged  a  pirate,  felon,  and  robber,  and  shall  suffer 
death. 


236  THE  POLITICAL  AND  ECONOMIC 

This  section  is  only  a  positive  extension  of  the  act  to  a  case 
which  might  otherwise  have  escaped  punishment.  It  takes 
away  the  protection  of  a  foreign  commission  from  an  Ameri 
can  citizen,  who  on  the  high  seas  robs  his  countrymen.  This 
is  no  exception  from  any  preceding  part  of  the  law,  because 
there  is  no  part  which  relates  to  the  conduct  of  vessels  com 
missioned  by  a  foreign  power;  it  only  proves  that,  in  the 
opinion  of  the  legislature,  the  penalties  of  the  act  could  not, 
without  this  express  provision,  have  been  incurred  by  a  citizen 
holding  a  foreign  commission. 

It  is  then  most  certain  that  the  act  of  Congress  does  not 
comprehend  the  case  of  a  murder  committed  on  board  a 
foreign  ship  of  war. 

The  gentleman  from  New  York  has  cited  2  Woodeson, 
428,  to  show  that  the  courts  of  England  extend  their  jurisdic 
tion  to  piracies  committed  by  the  subjects  of  foreign  nations. 

This  has  not  been  doubted.  The  case  from  Woodeson  is  a 
case  of  robberies  committed  on  the  high  seas  by  a  vessel  with 
out  authority.  There  are  ordinary  acts  of  piracy,  which,  as 
has  been  already  stated,  being  offenses  against  all  nations,  are 
punishable  by  all.  The  case  from  2  Woodeson,  and  the  note 
cited  from  the  same  book,  by  the  gentleman  from  Delaware, 
are  strong  authorities  against  the  doctrines  contended  for  by 
the  friends  of  the  resolutions. 

It  has  also  been  contended,  that  the  question  of  jurisdiction 
was  decided  at  Trenton,  by  receiving  indictments  against  per 
sons  there  arraigned  for  the  same  offense,  and  by  retaining 
them  for  trial  after  the  return  of  the  habeas  corpus. 

Every  person  in  the  slightest  degree  acquainted  with  ju 
dicial  proceedings,  knows  that  an  indictment  is  no  evidence  of 
jurisdiction;  and  that  in  criminal  cases,  the  question  of  juris 
diction  will  seldom  be  made  but  by  arrest  of  judgment  after 
conviction. 

The  proceedings  after  the  return  of  the  habeas  corpus  only 
prove  that  the  case  was  not  such  a  case  as  to  induce  the  judge 
immediately  to  decide  against  his  jurisdiction.  The  question 
was  not  free  from  doubt,  and  therefore  might  very  properly  be 
postponed  until  its  decision  should  become  necessary. 

It  has  been  argued  by  the  gentleman  from  New  York  that 
the  form  of  indictment  is,  itself,  evidence  of  a  power  in  the 
court  to  try  the  case.  Every  word  of  that  indictment,  said 


DOCTRINES  OF  JOHN  MARSHALL          237 

the  gentleman,  gives  the  lie  to  a  denial  of  the  jurisdiction  of  the 
court. 

It  would  be  assuming  a  very  extraordinary  principle  indeed, 
to  say  that  the  words  inserted  in  an  indictment  for  the  express 
purpose  of  assuming  the  jurisdiction  of  a  court  should  be  ad 
mitted  to  prove  that  jurisdiction.  The  question  certainly  de 
pended  on  the  nature  of  the  fact,  and  not  on  the  description  of 
the  fact.  But  as  an  indictment  must  necessarily  contain  for 
mal  words  in  order  to  be  supported,  and  as  forms  often  denote 
what  a  case  must  substantially  be  to  authorize  a  court  to  take 
cognizance  of  it,  some  words  in  the  indictments,  at  Trenton, 
ought  to  be  noticed.  The  indictments  charge  the  persons  to 
have  been  within  the  peace,  and  the  murder  to  have  been  com 
mitted  against  the  peace,  of  the  United  States.  These  are 
necessary  averments,  and,  to  give  the  court  jurisdiction,  the  fact 
ought  to  have  accorded  with  them.  But  who  will  say  the  crew 
of  a  British  frigate  on  the  high  seas  are  within  the  peace  of  the 
United  States,  or  a  murder  committed  on  board  such  a  frig 
ate  against  the  peace  of  any  other  than  the  British  govern 
ment. 

It  is  then  demonstrated,  that  the  murder  with  which  Thomas 
Nash  was  charged  was  not  committed  within  the  jurisdiction 
of  the  United  States,  and,  consequently,  that  the  case  stated 
was  completely  within  the  letter  and  the  spirit  of  the  twenty- 
seventh  article  of  the  treaty  between  the  two  nations.  If  the 
necessary  evidence  was  produced,  he  ought  to  have  been  deliv 
ered  up  to  justice.  It  was  an  act  to  which  the  American  nation 
was  bound  by  a  most  solemn  contract.  To  have  tried  him  for 
the  murder  would  have  been  mere  mockery.  To  have  con 
demned  and  executed  him,  the  court  having  no*  jurisdiction, 
would  have  been  murder;  to  have  acquitted  and  discharged 
him,  would  have  been  a  breach  of  faith  and  a  violation  of 
national  duty. 

But  it  has  been  contended,  that  although  Thomas  Nash  ought 
to  have  been  delivered  up  to  the  British  minister,  on  the 
requisition  made  by  him  in  the  name  of  his  government,  yet 
the  interference  of  the  President  was  improper. 

This,  Mr.  Marshall  said,  led  to  his  second  proposition, 
which  was, 

That  the  case  was  a  case  for  executive  and  not  judicial  de 
cision.  He  admitted  implicitly  the  division  of  powers  stated 


238  THE  POLITICAL  AND  ECONOMIC 

by  the  gentleman  from  New  York,  and  that  it  was  the  duty 
of  each  department  to  resist  the  encroachments  of  the  others. 

This  being  established,  the  inquiry  was,  to  what  department 
was  the  power  in  question  allotted? 

The  gentleman  from  New  York  had  relied  on  the  second 
section  of  the  third  article  of  the  constitution,  which  enu 
merates  the  cases  to  which  the  judicial  power  of  the  United 
States  extends,  as  expressly  including  that  now  under  consid 
eration.  Before  he  examined  that  section,  it  would  not  be  im 
proper  to  notice  a  very  material  misstatement  of  it  made  in  the 
resolutions  offered  by  the  gentleman  from  New  York.  By  the 
constitution,  the  judicial  power  of  the  United  States  is  extended 
to  all  cases  in  law  and  equity,  arising  under  the  constitution, 
laws  and  treaties  of  the  United  States ;  but  the  resolutions  de 
clare  the  judicial  power  to  extend  to  all  questions  arising  under 
the  constitution,  treaties  and  laws  of  the  United  States.  The 
difference  between  the  constitution  and  the  resolutions  was 
material  and  apparent.  A  case  in  law  or  equity  was  a  term 
well  understood,  and  of  limited  signification.  It  was  a  con 
troversy  between  parties  which  had  taken  a  shape  for  judicial 
decision.  If  the  judicial  power  extended  to  every  question 
under  the  constitution,  it  would  involve  almost  every  subject 
proper  for  legislative  discussion  and  decision ;  if  to  every  ques 
tion  under  the  laws  and  treaties  of  the  United  States,  it  would 
involve  almost  every  subject  on  which  the  executive  could  act. 
The  division  of  power  which  the  gentleman  had  stated,  could 
exist  no  longer,  and  the  other  departments  would  be  swallowed 
up  by  the  judiciary.  But  it  was  apparent  that  the  resolutions 
had  essentially  misrepresented  the  constitution.  He  did  not 
charge  the  gentleman  from  New  York  with  intentional  misrep 
resentation  ;  he  would  not  attribute  to  him  such  an  artifice  in 
any  case,  much  less  in  a  case  where  detection  was  so  easy  and 
so  certain.  Yet  this  substantial  departure  from  the  constitu 
tion,  in  resolutions  affecting  substantially  to  unite  it,  was  not 
less  worthy  of  remark  for  being  unintentional.  It  manifested 
the  course  of  reasoning  by  which  the  gentleman  had  himself 
been  misled,  and  his  judgment  betrayed  into  the  opinions  those 
resolutions  expressed. 

By  extending  the  judicial  power  to  all  cases  in  law  and 
equity,  the  constitution  had  never  been  understood  to  confer 
on  that  department  any  political  power  whatever.  To  come 


DOCTRINES  OF  JOHN  MARSHALL          239 

within  this  description,  a  question  must  assume  a  legal  form 
for  forensic  litigation  and  judicial  decision.  There  must  be 
parties  to  come  into  court,  who  can  be  reached  by  its  process, 
and  bound  by  its  power;  whose  rights  admit  of  ultimate  de 
cision  by  a  tribunal  to  which  they  are  bound  to  submit. 

A  case  in  law  or  equity  proper  for  judicial  decisions  may 
arise  under  a  treaty,  where  the  rights  of  individuals  acquired 
or  secured  by  a  treaty  are  to  be  asserted  or  defended  in  court. 
As  under  the  fourth  or  sixth  article  of  the  treaty  of  peace  with 
Great  Britain,  or  under  those  articles  of  our  late  treaties  with 
France,  Prussia,  and  other  nations,  which  secure  to  the  subjects 
of  those  nations  their  property  within  the  United  States;  or, 
as  would  be  an  article  which,  instead  of  stipulating  to  deliver  up 
an  offender,  should  stipulate  his  punishment,  provided  the  case 
was  punishable  by  the  laws  and  in  the  courts  of  the  United 
States.  But  the  judicial  power  cannot  extend  to  political  com 
pacts;  as,  the  establishment  of  the  boundary  line  between  the 
American  and  British  dominions;  the  case  of  the  late  guarantee 
in  our  treaty  with  France,  or  the  case  of  the  delivery  of  a  mur 
derer  under  the  twenty-seventh  article  of  our  present  treaty 
with  Britain. 

The  gentleman  from  New  York  has  asked,  triumphantly 
asked,  what  power  exists  in  our  high  courts  to  deliver  up  an 
individual  to  a  foreign  government?  Permit  me,  said  Mr. 
Marshall,  but  not  triumphantly,  to  retort  the  question  —  By 
what  authority  can  any  court  render  such  a  judgment?  What 
power  does  a  court  possess  to  seize  any  individual,  and  deter 
mine  that  he  shall  be  adjudged  by  a  forign  tribunal?  Surely 
our  courts  possess  no  such  power,  yet  they  must  possess  it,  if 
this  article  of  the  treaty  is  to  be  executed  by  the  courts. 

Gentlemen  have  cited  and  relied  on  that  clause  in  the  consti 
tution  which  enables  Congress  to  define  and  punish  piracies 
and  felonies  committed  on  the  high  seas,  and  offenses  against 
the  law  of  nations,  together  with  the  act  of  Congress  declaring 
the  punishment  of  those  offenses,  as  transferring  the  whole 
subject  to  the  courts.  But  that  clause  can  never  be  construed 
to  make  to  the  government  a  grant  of  power,  which  the  people 
making  it  did  not  themselves  possess.  It  has  already  been 
shown  that  the  people  of  the  United  States  have  no  jurisdiction 
over  offenses  committed  on  board  a  foreign  ship  against  a 
foreign  nation.  Of  consequence,  in  framing  a  government 


240  THE  POLITICAL  AND  ECONOMIC 

for  themselves,  they  cannot  have  passed  this  jurisdiction  to  that 
government.  The  law,  therefore,  cannot  act  upon  the  case. 
But  this  clause  of  the  constitution  cannot  be  considered,  and 
need  not  be  considered,  as  affecting  acts  which  are  piracy  under 
the  law  of  nations.  As  the  judicial  power  of  the  United 
States  extends  to  all  cases  of  admiralty  and  marine  jurisdiction, 
and  piracy  under  the  law  of  nations  is  of  admiralty  and 
maritime  jurisdiction,  punishable  by  every  nation,  the  judicial 
power  of  the  United  States,  of  course  extends  to  it.  On  this 
principle  the  courts  of  admiralty  under  the  confederation  took 
cognizance  of  piracy,  although  there  was  no  express  power  in 
Congress  to  define  and  punish  the  offense. 

But  the  extension  of  the  judicial  power  of  the  United  States 
to  all  cases  of  admiralty  and  maritime  jurisdiction  must  neces 
sarily  be  understood  with  some  limitation.  All  cases  of  ad 
miralty  and  maritime  jurisdiction  which,  from  their  nature,  are 
triable  in  the  United  States,  are  submitted  to  the  jurisdiction  of 
the  courts  of  the  United  States.  There  are  cases  of  piracy  by 
the  law  of  nations,  and  cases  within  the  legislative  jurisdiction 
of  the  nation.  The  people  of  America  possessed  no  other 
power  over  the  subject,  and  could,  consequently,  transfer  no 
other  to  their  courts ;  and  it  has  already  been  proved,  that  a 
murder  committed  on  board  a  foreign  ship  of  war  is  not  com 
prehended  within  this  description. 

The  consular  convention  with  France  has  also  been  relied  on, 
as  proving  the  act  of  delivering  up  an  individual  to  a  foreign 
power,  to  be  in  its  nature  judicial,  and  not  executive. 

The  ninth  article  of  that  convention  authorizes  the  consuls 
and  vice-consuls  of  either  nation  to  cause  to  be  arrested  all 
deserters  from  their  vessels,  "  for  which  purpose  the  said  con 
suls  and  vice-consuls  shall  address  themselves  to  the  courts, 
judges,  and  officers  competent." 

This  article  of  the  convention  does  not,  like  the  twenty- 
seventh  article  of  the  treaty  with  Britain,  stipulate  a  national 
act,  to  be  performed  on  the  demand  of  a  nation ;  it  only  author 
izes  a  foreign  minister  to  cause  an  act  to  be  done,  and  pre 
scribes  the  course  he  is  to  pursue.  The  contract  itself  is,  that 
the  act  shall  be  performed  by  the  agency  of  the  foreign  consul, 
through  the  medium  of  the  courts ;  but  this  affords  no  evidence 
that  a  contract  of  a  very  different  nature  is  to  be  performed 
in  the  same  manner. 


DOCTRINES  OF  JOHN  MARSHALL          241 

It  is  said  that  the  then  President  of  the  United  States  de 
clared  the  incompetency  of  the  courts,  judges,  and  officers,  to 
execute  this  contract,  without  an  act  of  the  legislature.  But 
the  then  President  made  no  such  declaration.  He  has  said  that 
some  legislative  provision  is  requisite  to  carry  the  stipulations 
of  the  convention  into  full  effect.  This,  however,  is  by  no 
means  declaring  the  incompetency  of  a  department  to  perform 
an  act  stipulated  by  treaty,  until  the  legislative  authority  shall 
direct  its  performance. 

It  has  been  contended,  that  the  conduct  of  the  executive  on 
former  occasions,  similar  to  this  in  principle,  has  been  such  as 
to  evince  an  opinion,  even  in  that  department,  that  the  case  in 
question  is  proper  for  the  decision  of  the  courts. 

The  fact  adduced  to  support  this  argument,  is  the  determina 
tion  of  the  late  President  on  the  case  of  prizes  made  within  the 
jurisdiction  of  the  United  States,  or  by  privateers  fitted  out  in 
their  ports.  The  nation  was  bound  to  deliver  up  those  prizes, 
in  like  manner  as  the  nation  is  now  bound  to  deliver  up  an  in 
dividual  demanded  under  the  twenty-seventh  article  of  the 
treaty  with  Britain.  The  duty  was  the  same,  and  devolved  on 
the  same  department. 

In  quoting  the  decision  of  the  executive  on  that  case,  the 
gentleman  from  New  York  has  taken  occasion  to  bestow  a  high 
encomium  on  the  late  President,  and  to  consider  his  conduct  as 
furnishing  an  example  worthy  the  imitation  of  his  successor. 

It  must  be  the  cause  of  much  delight  to  the  real  friends  of 
that  great  man,  to  those  who  supported  his  administration  while 
in  office  from  a  conviction  of  its  wisdom  and  its  virtue,  to  hear 
the  unqualified  praise  which  is  now  bestowed  on  it  by  those  who 
had  been  supposed  to  possess  different  opinions.  If  the 
measure  now  under  consideration  shall  be  found,  on  examina 
tion,  to  be  the  same  in  principle  with  that  which  has  been  cited 
by  its  opponents  as  a  fit  precedent  for  it,  then  may  the  friends  of 
the  gentleman  now  in  office  indulge  the  hope,  that  when  he,  like 
his  predecessor,  shall  be  no  more,  his  conduct,  too,  may  be 
quoted  as  an  example  for  the  government  of  his  successors. 

The  evidence  relied  to  prove  the  opinion  of  the  then  executive 
on  the  case,  consists  of  two  letters  from  the  Secretary  of 
State  —  the  one  of  the  2Qth  of  June,  1793,  to  Mr.  Genet,  and 
the  other  of  the  i6th  of  August,  1793,  to  Mr.  Morris. 

In  the  letter  to  Mr.  Genet,  the  Secretary  says,  that  the  claim- 


242  THE  POLITICAL  AND  ECONOMIC 

ant  having  filed  his  libel  against  the  ship  William  in  the  Court 
of  Admiralty,  there  was  no  power  which  could  take  the  vessel 
out  of  court  until  it  had  decided  against  its  own  jurisdiction; 
that  having  so  decided,  the  complaint  is  lodged  with  the  execu 
tive,  and  he  asks  for  evidence  to  enable  that  department  to  con 
sider  and  decide  finally  on  the  subject. 

It  will  be  difficult  to  find  in  this  letter  an  executive  opinion, 
that  the  case  was  not  a  case  for  executive  decision.  The  con 
trary  is  clearly  avowed.  It  is  true,  that  when  an  individual 
claiming  the  property  as  his,  had  asserted  that  claim  in  court, 
the  executive  acknowledges  in  itself  a  want  of  power  to  dis 
miss  or  decide  upon  the  claim  thus  pending  in  court.  But  this 
argues  no  opinion  of  a  want  of  power  in  itself  to  decide  upon 
the  case,  if,  instead  of  being  carried  before  a  court  as  an  in 
dividual  claim,  it  is  brought  before  the  executive  as  a  national 
demand.  A  private  suit  instituted  by  an  individual,  asserting 
his  claim  to  property,  can  only  be  controlled  by  that  individual. 
The  executive  can  give  no  direction  concerning  it.  But  a  public 
prosecution,  carried  on  in  the  name  of  the  United  States,  can 
without  impropriety  be  dismissed  at  the  will  of  the  government. 
The  opinion,  therefore,  given  in  this  letter  is  unquestionably 
correct ;  but  it  is  certainly  misunderstood,  when  it  is  considered 
as  being  an  opinion  that  the  question  was  not  in  its  nature  a 
question  for  executive  decision. 

In  the  letter  to  Mr.  Morris,  the  secretary  asserts  the  principle, 
that  vessels  taken  within  our  jurisdiction  ought  to  be  restored, 
but  says  it  is  yet  unsettled  whether  the  act  of  restoration  is  to 
be  performed  by  the  executive  or  judicial  department. 

The  principle,  then,  according  to  this  letter,  is  not  submitted 
to  the  courts  —  whether  a  vessel  captured  within  a  given  dis 
tance  of  the  American  coast  was  or  was  not  captured  within  the 
jurisdiction  of  the  United  States,  was  a  question  not  to  be  de 
termined  by  the  courts,  but  by  the  executive.  The  doubt  ex 
pressed  is,  not  what  tribunal  shall  settle  the  principle,  but 
what  tribunal  shall  settle  the  fact.  In  this  respect  a  doubt 
might  exist  in  the  case  of  prizes,  which  could  not  exist  in  the 
case  of  a  man.  Individuals  on  each  side  claimed  the  property, 
and  therefore  their  rights  could  not  be  brought  into  court,  and 
there  contested  as  a  case  in  law  or  equity.  The  demand  of  a 
man  made  by  a  nation  stands  on  different  principles. 

Having  noticed  the  particular  letters  cited  by  the  gentleman 


DOCTRINES  OF  JOHN  MARSHALL          243 

from  New  York,  permit  me  now,  said  Mr.  Marshall,  to  ask  the 
attention  of  the  house  to  the  whole  course  of  executive  conduct 
on  this  interesting  subject. 

It  is  first  mentioned,  in  a  letter  from  the  Secretary  of  State  to 
Mr.  Genet,  of  the  25th  of  June,  1793.  In  that  letter,  the  sec 
retary  states  a  consultation  between  himself  and  the  secretaries 
of  the  treasury  and  war  (the  President  being  absent),  in  which 
(so  well  were  they  assured  of  the  President's  way  of  thinking 
in  those  cases)  it  was  determined,  that  the  vessel  should  be 
detained  in  the  custody  of  the  consuls  in  the  ports,  "  until  the 
government  of  the  United  States  shall  be  able  to  inquire  into, 
and  decide  on  the  fact." 

In  his  letter  of  the  I2th  of  July,  1793,  the  secretary  writes, 
the  President  has  determined  to  refer  the  questions  concerning 
prizes  "  to  persons  learned  in  the  laws."  And  he  requests  that 
certain  vessels  enumerated  in  the  letter  should  not  depart  "  until 
this  ultimate  determination  shall  be  made  known." 

In  his  letter  of  the  7th  of  August,  1793,  the  secretary  informs 
Mr.  Genet,  that  the  President  considers  the  United  States  as 
bound  "  to  effectuate  the  restoration  of,  or  to  make  compensa 
tion  for,  prizes  which  shall  have  been  made  of  any  of  the  parties 
at  war  with  France,  subsequent  to  the  5th  day  of  June  last,  by 
privateers  fitted  out  of  our  ports."  That  it  is  consequently 
expected  that  Mr.  Genet  will  cause  restitution  of  such  prizes  to 
be  made  and  that  the  United  States  will  cause  restitution  to  be 
made  "  of  all  such  prizes  as  shall  be  hereafter  brought  within 
their  ports  by  any  of  the  said  privateers." 

In  his  letter  of  the  loth  of  November,  1793,  the  secretary 
informs  Mr.  Genet,  that,  for  the  purpose  of  obtaining  testimony 
to  ascertain  the  fact  of  capture  within  the  jurisdiction  of  the 
United  States,  the  governors  of  the  several  states  were  re 
quested,  on  receiving  any  such  claim,  immediately  to  notify 
thereof  the  attorneys  of  their  several  districts,  whose  duty  it 
would  be  to  give  notice  "  to  the  principle  agent  of  both  parties, 
and  also  to  the  consuls  of  the  nations  interested,  and  to  recom 
mend  to  them  to  appoint  by  mutual  consent  arbiters  to  decide 
whether  the  capture  was  made  within  the  jurisdiction  of  the 
United  States,  as  stated  in  my  letter  of  the  8th  instant,  accord 
ing  to  whose  award  the  governor  may  proceed  to  deliver  the 
vessel  to  the  one  or  the  other  party."  "  If  either  party  refuse 
to  name  arbiters,  then  the  attorney  is  to  take  depositions  on 


244  THE  POLITICAL  AND  ECONOMIC 

notice,  which  he  is  to  transmit  for  the  information  and  decision 
of  the  President."  "  This  prompt  procedure  is  the  more  to  be 
insisted  on,  as  it  will  enable  the  President,  by  an  immediate 
delivery  of  the  vessel  and  cargo  to  the  party  having  title,  to  pre 
vent  the  injuries  consequent  on  long  delay." 

In  his  letter  of  the  22d  of  November,  1793,  the  secretary 
repeats  in  substance,  his  letters  of  the  I2th  of  July  and  /th  of 
August,  and  says,  that  the  determination  to  deliver  up  certain 
vessels,  involved  the  brig  Jane,  of  Dublin,  the  brig  Lovely  fcass, 
and  the  brig  Prince  William  Henry.  He  concludes  with  say 
ing,  "  I  have  it  in  charge  to  inquire  of  you,  sir,  whether  these 
three  brigs  have  been  given  up  according  to  the  determina 
tion  of  the  President,  and  if  they  have  not,  to  repeat  the 
requisition  that  they  may  be  given  up  to  their  former  owners." 

Ultimately  it  was  settled  that  the  fact  should  be  investigated 
in  the  courts,  but  the  decision  was  regulated  by  the  principles 
established  by  the  executive  department. 

The  decision,  then,  on  the  case  of  vessels  captured  within 
the  American  jurisdiction,  by  privateers  fitted  out  of  the 
American  ports,  which  the  gentleman  from  New  York  has 
cited  with  such  merited  approbation;  and  which  he  has  de 
clared  to  stand  on  the  same  principles  with  those  which  ought 
to  have  governed  in  the  case  of  Thomas  Nash ;  which  deserves 
the  more  respect,  because  the  government  of  the  United  States 
was  then  so  circumstanced  as  to  assure  us,  that  no  opinion  was 
lightly  taken  up,  and  no  resolution  formed  but  on  mature  con 
sideration.  This  decision,  quoted  as  a  precedent,  and  pro 
nounced  to  be  right,  is  found,  on  fair  and  full  examination,  to 
be  precisely  and  unequivocally  the  same  with  that  which  was 
made  in  the  case  under  consideration.  It  is  a  full  authority  to 
show,  that,  in  the  opinion  always  held  by  the  American  govern 
ment,  a  case  like  that  of  Thomas  Nash  is  a  case  for  executive, 
and  not  judicial  decision. 

The  clause  in  the  constitution,  which  declares,  that  "  the  trial 
of  all  crimes,  except  in  cases  of  impeachment,  shall  be  by  jury," 
has  also  been  relied  on  as  operating  on  the  case,  and  trans 
ferring  the  decision  on  a  demand  for  the  delivery  of  an  in 
dividual  from  the  executive  to  the  judicial  department. 

But  certainly  this  clause  in  the  constitution  of  the  United 
States  cannot  be  thought  obligatory  on,  and  for  the  benefit  of, 
the  whole  world.  It  is  not  designed  to  secure  the  rights  of  the 


DOCTRINES  OF  JOHN  MARSHALL          245 

people  of  Europe  and  Asia,  or  to  direct  and  control  proceed 
ings  against  criminals  throughout  the  universe.  It  can  then  be 
assigned  only  to  guide  proceedings  of  our  own  courts,  and  to 
prescribe  the  mode  of  punishing  offenses  committed  against  the 
government  of  the  United  States,  and  to  which  the  jurisdiction 
of  the  nation  may  rightfully  extend. 

It  has  already  been  shown,  that  the  courts  of  the  United 
States  were  incapable  of  trying  the  crime  for  which  Thomas 
Nash  was  delivered  up  to  justice ;  the  question  to  be  determined 
was,  not  how  his  crime  should  be  tried  and  punished,  but 
whether  he  should  be  delivered  up  to  a  foreign  tribunal  which 
was  alone  capable  of  trying  and  punishing  him.  A  provision 
for  the  trial  of  crimes  in  the  courts  of  the  United  States,  is 
clearly  not  a  provision  for  the  performance  of  a  national  com 
pact  for  the  surrender  to  a  foreign  government  of  an  offender 
against  that  government. 

The  clause  of  the  constitution  declaring  that  the  trial  of  all 
crimes  shall  be  by  jury,  has  never  even  been  construed  to  extend 
to  the  trial  of  crimes  committed  in  the  land  and  naval  forces 
of  the  United  States.  Had  such  a  construction  prevailed,  it 
would  most  probably  have  prostrated  the  constitution  itself, 
with  the  liberties  and  the  independence  of  the  nation,  before  the 
first  disciplined  invader  who  should  approach  our  shores. 
Necessity  would  have  imperiously  demanded  the  review  and 
amendment  of  so  unwise  a  provision.  If,  then,  this  clause  does 
not  extend  to  offenses  committed  in  the  fleets  and  armies  of  the 
United  States,  how  can  it  be  construed  to  extend  to  offenses 
committed  in  the  fleets  and  armies  of  Britain  or  of  France, 
or  of  the  Ottoman  or  Russian  empires  ? 

The  same  argument  applies  to  the  observations  on  the  seventh 
article  of  the  amendments  to  the  constitution.  That  article 
relates  only  to  trials  in  the  courts  of  the  United  States,  and  not 
to  the  performance  of  a  contract  for  the  delivery  of  a  murder 
not  triable  in  those  courts. 

In  this  part  of  the  argument,  the  gentleman  from  New  York 
has  presented  a  dilemma  of  a  very  wonderful  structure  indeed. 
He  says  that  the  offense  of  Thomas  Nash  was  either  a  crime 
or  not  a  crime.  If  it  was  a  crime,  the  constitutional  mode  of 
punishment  ought  to  have  been  observed.  If  it  was  not  a 
crime,  he  ought  not  have  been  delivered  up  to  a  foreign  govern 
ment,  where  his  punishment  was  inevitable. 


246  THE  POLITICAL  AND  ECONOMIC 

It  had  escaped  the  observation  of  that  gentleman,  that  if  the 
murder  committed  by  Thomas  Nash  was  a  crime,  yet  it  was  not 
a  crime  provided  for  by  the  constitution,  or  triable  in  the 
courts  of  the  United  States;  and  that  if  it  was  not  a  crime,  yet 
it  is  the  precise  case  in  which  his  surrender  was  stipulated  by 
treaty.  Of  this  extraordinary  dilemma,  then,  the  gentleman 
from  New  York  is,  himself,  perfectly  at  liberty  to  retain  either 
form.  The  gentleman  is  incorrect  in  every  part  of  his  state 
ment.  Murder  on  board  a  British  frigate  is  not  a  crime  created 
by  treaty.  It  would  have  been  a  crime  of  precisely  the  same 
magnitude,  had  the  treaty  never  been  formed.  It  is  not  pun 
ished  by  sending  the  offender  out  of  the  United,  States.  The 
experience  of  this  unfortunate  criminal,  who  was  hung  and 
gibbeted,  evinced  to  him  that  the  punishment  of  his  crime  was 
of  a  much  more  serious  nature  than  the  mere  banishment  from 
the  United  States. 

The  gentleman  from  Pennsylvania  and  the  gentleman  from 
Virginia  have  both  contended,  that  this  was  a  case  proper  for 
the  decision  of  the  courts,  because  points  of  law  occurred,  and 
points  of  law  must  have  been  decided  in  its  determination. 

The  points  of  law  which  must  have  been  decided  are  stated 
by  the  gentleman  from  Pennsylvania  to  be,  first,  a  question 
whether  the  offense  was  committed  within  the  British  jurisdic 
tion;  and,  secondly,  whether  the  crime  charged  was  compre 
hended  within  the  treaty. 

It  is  true,  sir,  these  points  of  law  must  have  occurred,  and 
must  have  been  decided  but  it  by  no  means  follows  that  they 
could  only  have  been  decided  in  court.  A  variety  of  legal  ques 
tions  must  present  themselves  in  the  performance  of  every  part 
of  executive  duty,  but  these  questions  are  not  therefore  to  be 
decided  in  a  court.  Whether  a  patent  for  land  shall  issue  or 
not  is  always  a  question  of  law,  but  not  a  question  which  must 
necessarily  be  carried  into  court.  The  gentleman  from  Penn 
sylvania  seems  to  have  permitted  himself  to  have  been  misled 
by  the  misrepresentation  of  the  constitution  made  in  the  reso 
lutions  of  the  gentleman  from  New  York ;  and,  in  consequence 
of  being  so  misled,  his  observations  have  the  appearance  of 
endeavoring  to  fit  the  constitution  to  his  arguments,  instead 
of  adapting  his  arguments  to  the  constitution. 

When  the  gentleman  has  proved  that  these  are  questions  of 
law,  and  that  they  must  been  decided  by  the  President,  he  has 


DOCTRINES  OF  JOHN  MARSHALL  247 

not  advanced  a  single  step  toward  proving  that  they  were  im 
proper  for  executive  decision.  The  questions  whether  vessels 
captured  within  three  miles  of  the  American  coast,  or  by  pri 
vateers  fitted  out  in  American  ports,  were  legally  captured  or 
not,  and  whether  the  American  government  was  bound  to 
restore  them,  if  in  its  power,  were  questions  of  law,  but  they 
were  questions  of  political  law,  proper  to  be  decided,  and  they 
were  decided  by  the  executive,  and  not  by  the  courts. 

The  casus  foederis  of  the  guaranty  was  a  question  of  law, 
but  no  man  would  have  hazarded  the  opinion  that  such  a  ques 
tion  must  be  carried  into  court,  and  can  only  be  there  decided. 
So  the  casus  foederis  under  the  twenty-seventh  article  of  the 
treaty  with  Britain  is  a  question  of  law,  but  of  political  law. 
The  question  to  be  decided  is,  whether  the  particular  case 
proposed  be  one  in  which  the  nation  has  bound  itself  to  act, 
and  this  is  a  question  depending  on  principles  never  submitted  to 
courts. 

If  a  murder  shall  be  committed  within  the  United  States, 
and  the  murderer  should  seek  an  asylum  in  Britain,  the  question 
whether  the  casus  foederis  of  the  twenty-seventh  article  had 
occurred,  so  that  his  delivery  ought  to  be  demanded,  would  be 
a  question  of  law,  but  no  man  would  say  it  was  a  question  which 
ought  to  be  decided  in  the  courts. 

When,  therefore,  the  gentleman  from  Pennsylvania  has 
established,  that  in  delivering  up  Thomas  Nash,  points  of  law 
were  decided  by  the  President  he  has  established  a  position 
which  in  no  degree  whatever  aids  his  argument. 

The  case  was  in  its  nature  a  national  demand  made  upon  the 
nation.  The  parties  were  the  two  nations.  They  cannot  come 
into  court  to  litigate  their  claims,  nor  can  a  court  decide  on 
them.  Of  consequence,  the  demand  is  not  a  case  for  judicial 
cognizance. 

The  President  is  the  sole  organ  of  the  nation  in  its  external 
relations,  and  its  sole  representative  with  foreign  nations.  Of 
consequence,  the  demand  of  a  foreign  nation  can  only  be  made 
on  him.  He  possesses  the  whole  executive  power.  He  holds 
and  directs  the  force  of  the  nation.  Of  consequence,  any 
act  to  be  performed  by  the  force  of  the  nation  is  to  be  per 
formed  through  him.  He  is  charged  to  execute  the  laws.  A 
treaty  is  declared  to  be  a  law.  He  must  then  execute  a  treaty, 
where  he,  and  he  alone,  possesses  the  means  of  executing  it. 


248  THE  POLITICAL  AND  ECONOMIC 

The  treaty,  which  is  a  law,  enjoins  the  performance  of  a 
particular  object.  The  person  who  is  to  perform  this  object 
is  marked  out  by  the  constitution,  since  the  person  is  named 
who  conducts  the  foreign  intercourse,  and  is  to  take  care  that 
the  laws  be  faithfully  executed.  The  means  by  which  it  is  to 
be  performed  —  the  force  of  the  nation  —  are  in  the  hands  of 
this  person.  Ought  not  this  person  to  perform  the  object,  al 
though  the  particular  mode  of  using  the  means  has  not  been 
prescribed  ?  Congress  unquestionably  may  prescribe  the  mode ; 
and  Congress  may  devolve  on  others  the  whole  execution  of  the 
contract,  but  till  this  be  done,  it  seems  the  duty  of  the  executive 
department  to  execute  the  contract  by  any  means  it  possesses. 

The  gentleman  from  Pennsylvania  contends  that,  although 
this  should  be  properly  an  executive  duty,  yet  it  cannot  be  per 
formed  until  Congress  shall  direct  the  mode  of  performance. 
He  says,  that  although  the  jurisdiction  of  the  courts  is  extended 
by  the  constitution  to  all  cases  of  admiralty  and  maritime  juris 
diction,  yet  if  the  courts  had  been  created  without  any  express 
assignment  of  jurisdiction,  they  could  not  have  taken  cog 
nizance  of  causes  expressly  allotted  to  them  by  the  constitution. 
The  executive,  he  says,  can,  no  more  than  courts,  supply  a 
legislative  omission. 

It  is  not  admitted  that  in  the  case  stated,  courts  could  not 
have  taken  jurisdiction.  The  contrary  is  believed  to  be  the  cor 
rect  opinion.  And  although  the  executive  cannot  supply  a  total 
legislative  omission,  yet  it  is  not  admitted  or  believed  that  there 
is  such  a  total  omission  in  this  case. 

The  treaty,  stipulating  that  a  murderer  shall  be  delivered  up 
to  justice,  is  as  obligatory  as  an  act  of  Congress  making  the 
same  declaration.  If,  then,  there  was  an  act  of  Congress  in 
the  words  of  the  treaty,  declaring  that  a  person  who  had  com 
mitted  a  murder  within  the  jurisdiction  of  Britain,  and  sought 
an  asylum  within  the  territory  of  the  United  States,  should  be 
delivered  up  by  the  United  States,  on  demand  of  His  Britannic 
Majesty,  and  such  evidence  of  his  criminality  as  would  have 
justified  his  commitment  for  trial,  had  the  offense  been  here 
committed ;  could  the  President,  who  is  bound  to  execute  the 
laws,  have  justified  a  refusal  to  deliver  up  the  criminal,  by  say 
ing  that  the  legislature  had  totally  omitted  to  provide  for  the 
case? 

The  executive  is  not  only  the  constitutional  department,  but 


DOCTRINES  OF  JOHN  MARSHALL          249 

seems  to  be  the  proper  department  to  which  the  power  in  ques 
tion  may  most  wisely  and  most  safely  be  confided. 

The  department  which  is  entrusted  with  the  whole  foreign 
intercourse  of  the  nation,  with  the  negotiation  of  all  its  treaties, 
with  the  power  of  demanding  a  reciprocal  performance  of  the 
article,  which  is  accountable  to  the  nation  for  the  violation  of 
its  engagements  with  foreign  nations,  and  for  the  consequences 
resulting  from  such  violations,  seems  the  proper  department  to 
be  entrusted  with  the  execution  of  a  national  contract  like 
that  under  consideration. 

If  at  any  time  policy  may  temper  the  strict  execution  of  the 
contract,  where  may  that  political  discretion  be  placed  so  safely 
as  in  the  department  whose  duty  it  is  to  understand  precisely 
the  state  of  the  political  intercourse  and  connection  between  the 
United  States  and  foreign  nations,  to  understand  the  manner  in 
which  the  particular  stipulation  is  explained  and  performed  by 
foreign  nations,  and  to  understand  completely  the  state  of  the 
Union? 

This  department,  too,  independent  of  judicial  aid,  which  may, 
perhaps,  in  some  instances  be  called  in,  is  furnished  with  a  great 
law-officer,  whose  duty  it  is  to  understand  and  to  advise  when 
the  casus  foederis  occurs.  And  if  the  President  should  be 
caused  to  be  arrested  under  the  treaty  an  individual  who  was  so 
circumstanced  as  not  to  be  properly  the  object  of  such  an  arrest, 
he  may  perhaps  bring  the  question  of  the  legality  of  his  arrest 
before  a  judge  by  a  writ  of  habeas  corpus. 

It  is  then  demonstrated,  that  according  to  the  practice,  and 
according  to  the  principles  of  the  American  government,  the 
question  whether  the  nation  has  or  has  not  bound  itself  to 
deliver  up  any  individual,  charged  with  having  committed  mur 
der  or  forgery  within  the  jurisdiction  of  Britain,  is  a  question, 
the  power  to  decide  which  rests  alone  with  the  executive  de 
partment. 

It  remains  to  enquire,  whether  in  exercising  this  power,  and 
in  performing  the  duty  it  enjoins,  the  President  has  committed 
an  unauthorized  and  dangerous  interference  with  judicial  de 
cisions. 

That  Thomas  Nash  was  committed  originally  at  the  instance 
of  the  British  consul  at  Charleston,  not  for  trial  in  the  American 
courts,  but  for  the  purpose  of  being  delivered  up  to  justice  in 
conformity  with  the  treaty  between  the  two  nations,  has  been 


250  THE  POLITICAL  AND  ECONOMIC 

already  so  ably  argued  by  the  gentleman  from  Delaware,  that 
nothing  further  can  be  added  to  that  point.  He  would,  there 
fore,  Mr.  Marshall  said,  consider  the  case  as  if  Nash,  instead 
of  having  been  committed  for  the  purposes  of  the  treaty,  had 
been  committed  for  trial.  Admitting  even  this  to  be  the  fact, 
conclusions  which  have  been  drawn  from  it  were  by  no  means 
warranted. 

Gentlemen  had  considered  it  as  an  offense  against  judicial 
authority,  and  a  violation  of  judicial  rights,  to  withdraw  from 
their  sentence  a  criminal  against  whom  a  prosecution  had  been 
commenced.  They  had  treated  the  subject  as  if  it  was  the 
privilege  of  courts  to  condemn  to  death  the  guilty  wretch  ar 
raigned  at  their  bar,  and  that  to  intercept  the  judgment  was  to 
violate  the  privilege.  Nothing  can  be  more  incorrect  than  this 
view  of  the  case.  It  is  not  the  privilege,  it  is  the  sad  duty  of 
courts  to  administer  criminal  judgment.  It  is  a  duty  to  be  per 
formed  at  the  demand  of  the  nation,  and  with  which  the  nation 
has  a  right  to  dispense.  If  the  judgment  of  death  is  to  be 
pronounced,  it  must  be  at  the  prosecution  of  the  nation,  and  the 
nation  may  at  will  stop  that  prosecution.  In  this  respect  the 
President  expresses  constitutionally  the  will  of  the  nation,  and 
may  rightfully,  as  was  done  in  the  case  at  Trenton,  enter  a 
nolle  prosequi,  or  direct  that  the  criminal  be  prosecuted  no 
further.  This  is  no  interference  with  judicial  decisions,  nor 
any  invasion  of  the  province  of  a  court.  It  is  the  exercise  of  an 
indubitable  and  a  constitutional  power.  Had  the  President 
directed  the  judge  at  Charleston  to  decide  for  or  against  his 
own  jurisdiction,  to  condemn  or  acquit  the  prisoner,  this  would 
have  been  a  dangerous  interference  with  judicial  decisions,  and 
ought  to  have  been  resisted.  But  no  such  direction  has  been 
given,  nor  any  such  decision  been  required.  If  the  President 
determined  that  Thomas  Nash  ought  to  have  been  delivered  up 
to  the  British  government  for  a  murder  committed  on  board  a 
British  frigate,  provided  evidence  of  the  fact  was  adduced,  it 
was  a  question  which  duty  obliged  him  to  determine,  and  which 
he  determined  rightly.  If  in  consequence  of  this  determina 
tion  he  arrested  the  proceedings  of  a  court  on  a  national  prose 
cution,  he  had  a  right  to  arrest  and  to  stop  them,  and  the  exer 
cise  of  this  right  was  a  necessary  consequence  of  the  determina 
tion  of  the  principal  question.  In  conforming  to  this  decision, 
the  court  has  left  open  the  question  of  its  jurisdiction.  Should 


DOCTRINES  OF  JOHN  MARSHALL          251 

another  prosecution  of  the  same  sort  be  commenced,  which 
should  not  be  suspended  but  continued  by  the  executive,  the 
case  of  Thomas  Nash  would  not  bind  as  a  precedent  against  the 
jurisdiction  of  the  court.  If  it  should  even  prove  that  in  the 
opinion  of  the  executive,  a  murder  committed  on  board  a  for 
eign  fleet  was  not  within  the  jurisdiction  of  the  court,  it  would 
prove  nothing  more;  and  though  this  opinion  might  rightfully 
induce  the  executive  to  exercise  its  power  over  the  prosecution, 
yet  if  the  prosecution  was  continued,  it  would  have  no  influ 
ence  with  the  court,  in  deciding  on  its  jurisdiction. 

Taking  the  fact,  then,  even  to  be  as  the  gentleman  in  support 
of  the  resolutions  would  state  it,  the  fact  cannot  avail  them. 

It  is  to  be  remembered,  too,  that  in  the  case  stated  to  the 
President,  the  judge  himself  appears  to  have  considered  it  as 
proper  for  executive  decision,  and  to  have  wished  that  decision. 
The  President  and  judge  seem  to  have  entertain'd  on  this  sub 
ject  the  same  opinion ;  and  in  consequence  of  the  opinion  of  the 
judge,  the  application  was  made  to  the  President. 

It  has  then  been  demonstrated : 

ist.  The  case  of  Thomas  Nash,  as  stated  to  the  President, 
was  completely  within  the  twenty-seventh  article  of  the  treaty 
between  the  United  States  of  America  and  Great  Britain. 

2d.  That  this  question  was  proper  for  executive  and  not  for 
judicial  decision ;  and 

3d.  That  in  deciding  it,  the  President  is  not  chargeable  with 
an  interference  with  judicial  decisions. 

After  trespassing  so  long,  Mr.  Marshall  said,  on  the  pa 
tience  of  the  house,  in  arguing  what  had  appeared  to  him 
to  be  the  material  points  growing  out  of  the  resolutions,  he 
regretted  the  necessity  of  detaining  them  still  longer  for  the 
purpose  of  noticing  an  observation,  which  appeared  not  to  be 
considered  by  the  gentleman  who  made  it  as  belonging  to  the 
argument. 

The  subject  introduced  by  this  observation,  however,  was 
so  calculated  to  interest  the  public  feelings,  that  he  must  be 
excused  for  stating  his  opinion  on  it. 

The  gentleman  from  Pennsylvania  had  said,  that  an  im 
pressed  American  seaman,  who  should  commit  homicide  for 
the  purpose  of  liberating  himself  from  the  vessel  in  which 
he  was  confined,  ought  not  to  be  given  up  as  a  murderer. 
In  this,  Mr.  Marshall  said,  he  concurred  entirely  with  that 


252  THE  POLITICAL  AND  ECONOMIC 

gentleman.  He  believed  the  opinion  to  be  unquestionably 
correct,  as  were  the  reasons  that  gentleman  had  given  in  sup 
port  of  it.  He  had  never  heard  any  American  avow  a  con 
trary  sentiment,  nor  did  he  believe  a  contrary  sentiment  could 
find  a  place  in  the  bosom  of  any  American.  He  could  not 
pretend,  and  did  not  pretend,  to  know  the  opinion  of  the 
executive  on  the  subject,  because  he  had  never  heard  the 
opinions  of  that  department;  but  he  felt  the  most  perfect 
conviction,  founded  on  the  general  conduct  of  the  govern 
ment,  that  it  could  never  surrender  an  impressed  American 
to  the  nation,  which,  in  making  the  impressment,  had  com 
mitted  a  national  injury. 

This  belief  was  in  no  degree  shaken  by  the  conduct  of  the 
executive  in  this  particular  case. 

In  his  own  mind,  it  was  a  sufficient  defense  of  the  Presi 
dent  from  an  imputation  of  this  kind,  that  the  fact  of  Thomas 
Nash  being  an  impressed  American  was  obviously  not  con 
templated  by  him  in  the  decision  he  made  on  the  principles 
of  the  case.  Consequently,  if  a  new  circumstance  occurred, 
which  would  essentially  change  the  case  decided  by  the  Presi 
dent,  the  judge  ought  not  to  have  acted  under  the  decision, 
but  the  new  circumstance  ought  to  have  been  stated.  Satis 
factory  as  this  defense  might  appear,  he  should  not  resort  to 
it,  because  to  some  it  might  seem  a  subterfuge.  He  defended 
the  conduct  of  the  President  on  other  and  still  stronger 
ground. 

The  President  had  decided  that  murder  committed  on  board 
a  British  frigate  on  the  high  seas  was  within  the  jurisdiction 
of  that  nation,  and  consequently  within  the  twenty-seventh  arti 
cle  of  its  treaty  with  the  United  States.  He  therefore  directed 
Thomas  Nash  to  be  delivered  to  the  British  minister,  if  satis 
factory  evidence  of  the  murder  should  be  adduced.  The  suffi 
ciency  of  the  evidence  was  submitted  entirely  to  the  judge.  If 
Thomas  Nash  had  committed  a  murder,  the  decision  was, 
that  he  should  be  surrendered  to  the  British  minister;  but  if 
he  had  not  committed  a  murder,  he  was  not  to  be  surren 
dered. 

Had  Thomas  Nash  been  an  impressed  American,  the  homi 
cide  on  board  the  Hermoine  would,  most  certainly,  not  have 
been  a  murder. 

The  act  of  impressing  an  American  is  an  act  of  lawless 


DOCTRINES  OF  JOHN  MARSHALL          253 

violence.  The  confinement  on  board  a  vessel  is  a  continuation 
of  that  violence,  and  an  additional  outrage.  Death  committed 
within  the  United  States,  in  resisting  such  violence,  would 
not  have  been  murder,  and  the  person  giving  the  wound  could 
not  have  been  treated  as  a  murderer.  Thomas  Nash  was 
only  to  have  been  delivered  up  to  justice  on  such  evidence 
as,  had  the  fact  been  committed  within  the  United  States, 
would  have  been  sufficient  to  have  induced  his  committment 
and  trial  for  murder.  Of  consequence,  the  decision  of  the 
President  was  so  expressed  as  to  exclude  the  case  of  an  im 
pressed  American  liberating  himself  by  homicide. 

He  concluded  with  observing,  that  he  had  already  too  long 
availed  himself  of  the  indulgence  of  the  house  to  venture 
further  on  that  indulgence,  by  recapitulating,  or  reinforcing, 
the  arguments  which  had  already  been  urged. 

SPEECH  OF  JOHN  MARSHALL  OPPOSING  PATRICK  HENRY 

Delivered  in  the  Virginia  Convention,  June  10,  1788,  urging  the 

ratification  of  the  new  Constitution 

Mr.  Chairman  :  I  conceive  that  the  object  of  the  discussion 
now  before  us  is,  whether  democracy  or  Hespotisrn  be  most 
eligible.  I  am  sure  that  those  who  framed  the  system  sub 
mitted  to  our  investigation,  and  those  who  now  support  it 
intend  the  establishment  and  security  of  the  former.  The* 
supporters  of  the  Constitution  claim  the  title  of  being  firm 
friends  of  the  liberty  and  rights  of  mankind.  They  say  that 
they  consider  it  as  the  best  means  of  protecting  liberty.  We, 
sir,  idolize  democracy.  Thogc  who  oppose  it  have  bestowed 
eulogiums  on  monarchy.  We  prefer  this  system  to  any  mon 
archy,  because  we  are  convinced  that  it  has  a  greater  tendency 
to  secure  our  liberty  and  promote  our  happiness.  We  admire 
it,  because  we  think  it  a  well  regulated  democracy :  it  is  recom 
mended  to  the  good  people  of  this  country ;  they  are,  through 
us,  to  declare  whether  it  be  such  a  plan  of  government  as  will 
establish  and  secure  their  freedom. 

Permit  me  to  attend  to  what  the  honorable  gentleman,  Mr. 
Henry,  has  said.  He  has  expatiated  on  the  necessity  of  a 
due  attention  to  certain  maxims  —  to  certain  fundamental 
principles,  from  which  a  free  people  ought  never  to  depart. 
I  concur  with  him  in  the  propriety  of  the  observance  of  such 
maxims.  They  are  necessary  in  any  government,  but  more 


254  THE  POLITICAL  AND  ECONOMIC 

essential  to  a  democracy  than  to  any  other.  What  are  the 
favorite  maxims  of  democracy?  A  strict  observance  of  jus 
tice  and  public  faith,  and  a  steady  adherence  to  virtue.  These, 
sir,  are  the  principles  of  a  good  government.  No  mischief, 
no  misfortune,  ought  to  deter  us  from  a  strict  observance  of 
justice  and  public  faith.  Would  to  heaven  that  these  prin 
ciples  had  been  observed  under  the  present  government !  Had 
this  been  the  case,  the  friends  of  liberty  would  not  be  so  willing 
now  to  part  with  it.  ptafTwe  boast  triat  "ouF government  is 
founded  on  these  maxims?  Can  we  pretend  to  the  enjoy 
ment  of  political  freedom  or  security,  when  we  are  told  that  a 
man  has  been,  by  an  act  of  Assembly,  struck  out  of  existence 
without  a  trial  by  jury,  without  examination,  without  being 
confronted  with  his  accusers  and  witnesses,  without  the  bene 
fits  of  the  law  of  the  land?  Where  is  our  safety,  when  we  are 
told  that  this  act  was  justifiable,  because  the  person  was  not  a 
Socrates?  W7hat  has  become  of  the  worthy  member's  max 
ims?  Is  this  one  of  them?  Shall  it  be  a  maxim  that  a  man 
shall  be  deprived  of  his  life  without  the  benefit  of  law  ?  Shall 
such  a  deprivation  of  life  be  justified  by  answering  that  the 
man's  life  was  not  taken  secundum  artem,  because  he  was  a 
bad  man  ?  Shall  it  be  a  maxim  that  government  ought  not  to 
be  empowered  to  protect  virtue? 

The  honorable  member,  after  attempting  to  vindicate  that 
tyrannical  legislative  act  to  which  I  have  been  alluding,  pro 
ceeded  to  take  a  view  of  the  dangers  to  which  this  country  is 
exposed.  He  told  us  that  the  principal  danger  arose  from  a 
government  which,  if  adopted,  would  give  away  the  Missis 
sippi.  I  intended  to  proceed  regularly,  by  attending  to  the 
clause  under  debate;  but  I  must  reply  to  some  observations 
which  were  dwelt  upon  to  make  impression  on  our  minds 
unfavorable  to  the  plan  upon  the  table.  Have  we  no  naviga 
tion  in,  or  do  we  derive  no  benefit  from  the  Mississippi? 
How  shall  we  retain.it?  By  retaining  that  weak  government 
which  has  hitherto  kept  it  from  us?  Is  it  thus  that  we  shall 
secure  that  navigation  ?  Give  the  government  the  power  of 
retaining  it,  and  then  we  may  hope  to  derive  actual  advantages 
from  it.  Till  we  do  this,  we  cannot  expect  that  a  government 
which  hitherto  has  not  been  able  to  protect  it,  will  have  the 
power  to  do  it  hereafter.  Have  we  attended  too  long  to  con 
sider  whether  this  government  would  be  able  to  protect  us? 


DOCTRINES  OF  JOHN  MARSHALL          255 

Shall  we  wait  for  further  proofs  of  its  inefficacy?  If  on 
mature  consideration  the  Constitution  will  be  found  to  be 
perfectly  right  on  the  subject  of  treaties,  and  containing  no 
danger  of  losing  that  navigation,  will  he  still  object?  Will  he 
object  because  eight  states  are  unwilling  to  part  with  it?  This 
is  no  good  ground  of  objection. 

He  then  stated  the  necessity  and  probability  of  obtaining 
amendments.  This  we  ought  to  postpone  until  we  come  to 
that  clause,  and  make  up  our  minds  whether  there  be  anything 
unsafe  in  this  system.  He  conceived  it  impossible  to  obtain 
amendments  after  adopting  it.  If  he  was  right,  does  not 
his  own  argument  prove  that  in  his  own  conception,  previous 
amendments  cannot  be  had?  For,  sir,  if  subsequent  amend 
ments  cannot  be  obtained,  shall  we  get  amendments  before 
we  ratify?  The  reasons  against  the  latter  do  not  apply  against 
the  former.  There  are  in  this  state,  and  in  every  state  in  the 
Union,  many  who  are  decided  enemies  of  the  Union.  Re 
flect  on  the  probable  conduct  of  such  men.  What  will  they 
do?  They  will  bring  amendments  which  are  local  in  their 
nature,  and  which  they  know  will  not  be  accepted.  What 
security  have  we  that  other  states  will  not  do  the  same?  We 
are  told  that  many  in  the  states  were  violently  opposed  to  it. 
They  are  more  mindful  of  local  interests.  They  will  never 
propose  such  amendments  as  they  think  would  be  obtained. 
Disunion  will  be  their  object.  This  will  be  attained  by  the 
proposal  of  unreasonable  amendments.  This,  sir,  though  a 
strong  cause,  is  not  the  only  one  that  will  militate  against 
previous  amendments.  Look  at  the  comparative  temper  of 
this  country  now  and  when  the  late  Federal  convention  met. 
We  had  no  idea  then  of  any  particular  system.  The  forma 
tion  of  the  most  perfect  plan  was  our  object  and  wish.  It 
was  imagined  that  the  states  would  accede  to,  and  be  pleased 
with,  the  proposition  that  would  be  made  them.  Consider  the 
violence  of  opinions,  the  prejudices  and  animosities  which 
have  been  since  imbibed.  Will  not  these  operate  greatly 
against  mutual  concessions,  or  a  friendly  concurrence?  This 
will,  however,  be  taken  up  more  properly  at  another  time. 
He  says  we  wish  to  have  a  strong,  energetic,  powerful  govern 
ment.  We  contend  for  a  well-regulated  democracy.  He  in 
sinuates  that  the  power  of  the  government  has  been  enlarged 
by  the  convention,  and  that  we  may  apprehend  it  will  be  en- 


256  THE  POLITICAL  AND  ECONOMIC 

larged  by  others.  The  convention  did  not,  in  fact,  assume  any 
power. 

They  have  proposed  for  our  consideration  a  scheme  of 
government  which  they  thought  advisable.  We  are  not  bound 
to  adopt  it  if  we  disapprove  of  it.  Had  not  every  individual  in 
this  community  a  right  to  tender  that  scheme  which  he  thought 
most  conducive  to  the  welfare  of  his  country?  Have  not 
several  gentlemen  already  demonstrated  that  the  convention 
did  not  exceed  their  powers?  But  the  Congress  have  the 
power  of  making  bad  laws  it  seems.  The  Senate,  with  the 
President,  he  informs  us,  may  make  a  treaty  which  shall  be 
disadvantageous  to  us;  and  that,  if  they  be  not  good  men,  it 
will  not  be  a  good  constitution.  I  shall  ask  the  worthy  member 
only,  if  the  people  at  large,  and  they  alone,  ought  to  make  laws 
and  treaties.  Has  any  man  this  in  contemplation?  You 
cannot  exercise  the  powers  of  government  personally  your 
selves.  You  must  trust  to  agents.  If  so,  will  you  dispute 
giving  them  the  power  of  acting  for  you,  from  an  existing 
possibility  that  they  may  abuse  it  ?  As  long  as  it  is  impossible 
for  you  to  transact  your  business  in  person,  if  you  repose 
no  confidence  in  delegates,  because  there  is  a  possibility  of 
their  abusing  it,  you  can  have  no  government;  for  the 
power  of  doing  good  is  inseparable  from  that  of  doing  some 
evil. 

We  may  derive  from  Holland  lessons  very  beneficial  to 
ourselves.  Happy  that  country  which  can  avail  itself  of  the 
misTortunes  of  others  —  which  can  gain  knowledge  from  that 
source  without  fatal  experience !  What  has  produced  the  late 
disturbances  in  that  country?  The  want  of  such  a  govern 
ment  as  is  on  your  table,  and  having  in  some  measure  such 
a  one  as  you  are  about  to  part  with.  The  want  of  proper 
powers  in  the  government,  the  consequent  deranged  and  re 
laxed  administration,  the  violence  of  contending  parties,  and 
inviting  foreign  powers  to  interpose  in  their  disputes,  have 
subjected  them  to  all  the  mischiefs  which  have  interrupted 
their  harmony.  I  cannot  express  my  astonishment  at  his  high- 
colored  eulogium  on  such  a  government.  Can  anything  be 
more  dissimilar  than  the  relation  between  the  British  govern 
ment  and  the  colonies,  and  the  relation  between  Congress  and 
the  states?  We  were  not  represented  in  Parliament.  Here 
we  are  represented.  Arguments  which  prove  the  impropriety 


DOCTRINES  OF  JOHN  MARSHALL          257 

of  being  taxed  by  Britain  do  not  hold  against  the  exercise 
of  taxation  by  Congress. 

Let  me  pay  attention  to  the  observation  of  the  gentleman 
who  was  last  up,  that  the  power  of  taxation  ought  not  to  be 
given  to  Congress.  This  subject  requires  the  undivided  at 
tention  of  this  House.  This  power  I  think  essentially  neces 
sary;  for  without  it  there  will  be  no  efficiency  in  the  govern 
ment.  We  have  had  a  sufficient  demonstration  of  the  vanity  of 
depending  on  requisitions.  How,  then,  can  the  general  gov 
ernment  exist  without  this  power?  The  possibility  of  its 
being  abused  is  urged  as  an  argument  against  its  expediency. 
To  very  little  purpose  did  Virginia  discover  the  defects  in  the 
old  system ;  to  little  purpose,  indeed,  did  she  propose  improve 
ments  ;  and  to  no  purpose  is  this  plan  constructed  for  the  pro 
motion  of  our  happiness,  if  we  refuse  it  now,  because  it  is 
possible  that  it  may  be  abused.  The  confederation  has 
nominal  powers,  but  no  means  to  carry  them  into  effect.  If 
a  system  of  government  were  devised  by  more  than  human  in 
telligence,  it  would  not  be  effectual  if  the  means  were  not 
adequate  to  the  power.  All  delegated  powers  are  liable  to  be 
abused.  Arguments  drawn  from  this  source  go  in  direct  op 
position  to  the  government,  and  in  recommendation  of  an 
archy.  The  friends  of  the  Constitution  are  as  tenacious  of 
liberty  as  its  enemies.  They  wish  to  give  no  power  that  will 
endanger  it.  They  wish  to  give  the  government  powers  to 
secure  and  protect  it.  Our  inquiry  here  must  be  whether  the 
power  of  taxation  be  necessary  to  perform  the  objects  of  the 
Constitution,  and  whether  it  be  safe,  and  as  well  guarded  as 
human  wisdom  can  do  it.  What  are  the  objects  of  the  national 
government?  To  protect  the  United  States,  and  to  promote 
the  general  welfare.  Protection,  in  time  of  war,  is  one  of  its 
principal  objects.  Until  mankind  shall  cease  to  have  ambi 
tion  and  avarice,  wafs  will  arise. 

The  prosperity  and  happiness  of  the  people  depend  on  the 
performance  of  these  great  and  important  duties  of  the  gen 
eral  government.  Can  these  duties  be  performed  by  one  state  ? 
Can  one  state  protect  us  and  promote  our  happiness?  The 
honorable  gentleman  who  has  gone  before  me,  Governor 
Randolph,  has  shown  that  Virginia  cannot  do  these  things. 
How,  then,  can  they  be  done?  By  the  national  government 
only.  Shall  we  refuse  to  give  it  power  to  do  them?  We  are 


258  THE  POLITICAL  AND  ECONOMIC 

answered,  that  the  powers  may  be  abused;  that,  though  the 
Congress  may  promote  our  happiness,  yet  they  may  prostitute 
their  powers  to  destroy  our  liberties.  This  goes  to  the  de 
struction  of  all  confidence  in  agents.  Would  you  believe  that 
men  who  had  merited  your  highest  confidence  would  deceive 
you?  Would  you  trust  them  again  after  one  deceptioh? 
Why  then  hesitate  to  trust  the  general  government  ?  The  ob 
ject  of  our  inquiry  is,  Is  the  power  necessary,  and  is  it  guarded? 
There  must  be  men  and  money  to  protect  us.  How  are  ar 
mies  to  be  raised ?  Must  we  not  have  money  for  that  purpose? 
But  the  honorable  gentleman  says  that  we  need  not  be  afraid 
of  war.  Look  at  history,  which  has  been  so  often  quoted. 
Look  at  the  great  volume  of  human  nature.  They  will  fore 
tell  you  that  a  defenseless  country  cannot  be  secure.  The 
nature  of  man  forbids  us  to  conclude  that  we  are  in  no  danger 
from  war.  The  passions  of  men  stimulate  them  to  avail 
themselves  of  the  weakness  of  others.  The  powers  of  Eu 
rope  are  jealous  of  us.  It  is  our  interest  to  watch  their  con 
duct,  and  guard  against  them.  They  must  be  pleased  with 
our  disunion.  If  we  invite  them  by  our  weakness  to  attack 
us,  will  they  not  do  it  ?  If  we  add  debility  to  our  present  situa 
tion,  a  partition  of  America  may  take  place. 

It  is,  then,  necessary  to  give  the  government  that  power,  in 
time  of  peace,  which  the  necessity  of  war  will  render  in 
dispensable,  or  else  we  shall  be  attacked  unprepared.  The  ex 
perience  of  the  world,  a  knowledge  of  human  nature,  and  our 
own  particular  experience  will  confirm  this  truth.  When 
danger  shall  come  upon  us,  may  we  not  do  what  we  were 
on  the  point  of  doing  once  already  —  that  is,  appoint  a  dicta 
tor?  Were  those  who  are  now  friends  to  this  Constitution 
less  active  in  the  defense  of  liberty  on  that  trying  occasion 
than  those  who  oppose  it?  When  foreign  dangers  come, 
may  not  the  fear  of  immediate  destruction,  by  foreign  ene 
mies,  impel  us  to  take  a  most  dangerous  step?  Where,  then, 
will  be  our  safety?  We  may  now  regulate  and  frame  a  plan 
that  will  enable  us  to  repel  attacks,  and  render  a  recurrence 
to  dangerous  expedients  unnecessary.  If  we  be  prepared  to 
defend  ourselves,  there  will  be  little  inducement  to  attack  us. 
But  if  we  defer  giving  the  necessary  power  to  the  general  gov 
ernment  till  the  moment  of  danger  arrives,  we  shall  give  it  then, 
and  with  an  unsparing  hand.  America,  like  other  nations, 


DOCTRINES  OF  JOHN  MARSHALL  259 

may  be  exposed  to  war.  The  propriety  of  giving  this  power 
will  be  proved  by  the  history  of  the  world,  and  particularly 
of  modern  republics.  I  defy  you  to  produce  a  single  instance 
where  requisitions  on  several  individual  states  composing  a 
confederacy  have  been  honestly  complied  with.  Did  gentle 
men  expect  to  see  such  punctuality  complied  with  in  America  ? 
If  they  did,  our  own  experience  shows  the  contrary. 

We  are  told  that  the  Confederation  carried  us  through  the ' 
war.  Had  not  the  enthusiasm  of  liberty  inspired  us  with 
unanimity,  that  system  would  never  have  carried  us  through 
it.  It  would  have  been  much  sooner  terminated  had  that 
government  been  possessed  of  due  energy.  The  inability  of 
Congress,  and  the  failure  of  states  to  comply  with  the  con 
stitutional  requisitions,  rendered  our  resistance  less  efficient 
than  it  might  have  been.  The  weakness  of  that  government 
caused  troops  to  be  against  us  which  ought  to  have  been  on 
our  side,  and  prevented  all  resources  of  the  community  from 
being  called  at  once  into  action.  The  extreme  readiness  of  the 
people  to  make  their  utmost  exertions  to  ward  off  solely  the 
pressing  danger,  supplied  the  place  of  requisitions.  When 
they  came  solely  to  be  depended  on,  their  inutility  was  fully 
discovered.  A  bare  sense  of  duty,  or  a  regard  to  propriety, 
is  too  feeble  to  induce  men  to  comply  with  obligations.  We 
deceive  ourselves  if  we  expect  any  efficacy  from  these.  If 
requisitions  will  not  avail,  the  government  must  have  the 
sinews  of  war  some  other  way.  Requisitions  cannot  be  ef 
fectual.  They  will  be  productive  of  delay,  and  will  ultimately 
be  inefficient.  By  direct  taxation,  the  necessities  of  the  gov 
ernment  will  be  supplied  in  a  peacable  manner,  without  irri 
tating  the  minds  of  the  people.  But  requisitions  cannot  be 
rendered  efficient  without  a  civil  war  —  without  great  expense 
of  money,  and  the  blood  of  our  citizens.  Are  there  any  other 
means?  Yes,  that  Congress  shall  apportion  the  respective 
quotas  previously,  and  if  not  complied  with  by  the  states, 
that  then  this  dreaded  power  shall  be  exercised.  The  opera 
tion  of  this  has  been  described 'by  the  gentleman  who  opened 
the  debate.  He  cannot  be  answered.  This  great  objection 
to  that  system  remains  unanswered.  Is  there  no  other  argu 
ment  which  ought  to  have  weight  with  us  on  this  subject? 
Delay  is  a  strong  and  pointed  objection  to  it. 

\Ve  are  told  by  the  gentleman  who  spoke  last,  that  direct 


2<5o  THE  POLITICAL  AND  ECONOMIC 

taxation  is  unnecessary,  because  we  are  not  involved  in  war. 
This  admits  the  propriety  of  recurring  to  direct  taxation  if 
we  were  engaged  in  war.  It  has  not  been  proved  that  we  have 
no  dangers  to  apprehend  on  this  point.  What  will  be  the  con 
sequence  of  the  system  proposed  by  the  worthy  gentleman? 
Suppose  the  states  should  refuse? 

The  worthy  gentleman  who  is  so  pointedly  opposed  to  the 
Constitution  proposes  remonstrances.  Is  it  a  time  for  Con 
gress  to  remonstrate  or  compel  a  compliance  with  requisi 
tions,  when  the  whole  wisdom  of  the  Union  and  the  power  of 
Congress  are  opposed  to  a  foreign  enemy?  Another  alterna 
tive  is,  that  if  the  states  shall  appropriate  certain  funds  for  the 
use  of  Congress,  Congress  shall  not  lay  direct  taxes.  Sup 
pose  the  funds  appropriated  by  the  states  for  the  use  of  Con 
gress  should  be  inadequate;  it  will  not  be  determined  whether 
they  be  insufficient  till  after  the  time  at  which  the  quota  ought  to 
have  been  paid;  and  then,  after  so  long  a  delay,  the  means 
of  procuring  money,  which  ought  to  have  been  employed  in  the 
first  instance,  must  be  recurred  to.  May  they  not  be  amused  by 
such  ineffectual  and  temporizing  alternatives  from  year  to 
year,  until  America  shall  be  enslaved?  The  failure  in  one 
state  will  authorize  a  failure  in  another.  The  calculation  in 
some  states  that  others  will  fail  will  produce  general  failures. 
This  will  also  be  attended  with  all  the  expenses  which  we  are 
anxious  to  avoid.  What  are  the  advantages  to  induce  us  to 
embrace  this  system?  If  they  mean  that  requisitions  should 
be  complied  with,  it  will  be  the  same  as  if  Congress  had  the 
power  of  direct  taxation.  The  same  amount  will  be  paid  by 
the  people. 

It  is  objected  that  Congress  will  not  know  how  to  lay  taxes, 
so  as  to  be  easy  and  convenient  for  the  people  at  large.  Let 
us  pay  strict  attention  to  this  objection.  If  it  appears  to  be 
totally  without  foundation,  the  necessity  of  levying  direct 
taxes  will  obviate  what  the  gentleman  says;  nor  will  there  be 
any  color  for  refusing  to  grant  the  power. 

The  objects  of  direct  taxes  are  well  understood;  they  are 
but  few;  what  are  they?  Lands,  slaves,  stock  of  all  kinds, 
and  a  few  other  articles  of  domestic  property.  Can  you  be 
lieve  that  ten  men,  selected  from  all  parts  of  the  state,  chosen 
because  they  know  the  situation  of  the  people,  will  be  unable 
to  determine  so  as  to  make  the  tax  equal  on,  and  convenient 


DOCTRINES  OF  JOHN  MARSHALL          261 

for,  the  people  at  large?  Does  any  man  believe  that  they 
would  lay  the  tax  without  the  aid  of  other  information  be 
sides  their  own  knowledge,  when  they  know  that  the  very 
object  for  which  they  are  elected  is  to  lay  the  taxes  in  a  judi 
cious  and  convenient  manner?  If  they  wish  to  retain  the  affec 
tions  of  the  people  at  large,  will  they  not  inform  themselves 
of  every  circumstance  that  can  throw  light  on  the  subject? 
Have  they  but  one  source  of  information?  Besides  their  own 
experience  —  their  knowledge  of  what  will  suit  their  constit 
uents  —  they  will  have  the  benefit  of  the  knowledge  and  ex 
perience  of  the  state  legislature.  They  will  see  in  what  manner 
the  legislature  of  Virginia  collects  its  taxes.  Will  they  be  un 
able  to  follow  their  example?  The  gentlemen  who  shall  be 
delegated  to  Congress  will  have  every  source  of  information 
that  the  legislatures  of  the  states  can  have,  and  can  lay  the 
taxes  as  equally  on  the  people,  and  with  as  little  oppression 
as  they  can.  If,  then,  it  be  admitted  that  they  can  understand 
how  to  lay  them  equally  and  conveniently,  are  we  to  admit 
that  they  will  not  do  it,  but  that  in  violation  of  every  principle 
that  ought  to  govern  men,  they  will  lay  them  so  as  to  oppress 
us?  What  benefit  will  they  have  by  it?  Will  it  be  promo- 
tive  of  their  reelection?  Will  it  be  by  wantonly  imposing 
hardships  and  difficulties  on  the  people  at  large,  that  they  will 
promote  their  own  interest,  and  secure  their  reelections?  To 
me  it  appears  incontrovertible  that  they  will  settle  them  in  such 
a  manner  as  to  be  easy  for  the  people.  Is  the  system  so  organ 
ized  as  to  make  taxation  dangerous?  I  shall  not  go  to  the 
various  checks  of  the  government,  but  examine  whether  the 
immediate  representation  of  the  people  be  well  constructed. 
I  conceive  its  organization  to  be  sufficiently  satisfactory  to  the 
warmest  friend  of  freedom.  No  tax  can  be  laid  without  the 
consent  of  the  House  of  Representatives.  If  there  be  no  im 
propriety  in  the  mode  of  electing  the  representatives,  can  any 
danger  be  apprehended?  They  are  elected  by  those  who  can 
elect  representatives  in  the  state  legislature.  How  can  the 
votes  of  the  electors  be  influenced?  By  nothing  but  the  char 
acter  and  conduct  of  the  man  they  vote  for.  What  object  can 
influence  them  when  about  choosing  him  ?  They  have  nothing 
to  direct  them  in  the  choice  but  their  own  good.  Have  you 
not  as  pointed  and  strong  a  security  as  you  can  possibly  have? 
It  is  a  mode  that  secures  an  impossibility  of  being  corrupted. 


262  THE  POLITICAL  AND  ECONOMIC 

If  they  are  to  be  chosen  for  their  wisdom,  virtue,  and  integ 
rity,  what  inducement  have  they  to  infringe  on  our  freedom? 
We  are  told  that  they  may  abuse  their  power.  Are  there 
strong  motives  to  prompt  them  to  abuse  it?  Will  not  such 
abuse  militate  against  their  own  interests  ?  Will  not  they  and 
their  friends  feel  the  effects  of  iniquitous  measures?  Does 
the  representative  remain  in  office  for  life?  Does  he  trans 
mit  his  title  to  his  son?  Is  he  secured  from  the  burden  im 
posed  on  the  community?  To  procure  their  reelection,  it  will 
be  necessary  for  them  to  confer  with  the  people  at  large,  and 
convince  them  that  the  taxes  laid  are  for  their  good.  If  I  am 
able  to  judge  on  the  subject,  the  power  of  taxation  now  before 
us  is  wisely  conceded,  and  the  representatives  are  wisely 
elected. 

The  honorable  gentleman  said  that  a  government  should  ever 
depend  on  the  affections  of  the  people.  It  must  be  so.  It  is 
the  best  support  it  can  have.  This  government  merits  the 
confidence  of  the  people,  and  I  make  no  doubt,  will  have  it. 
Then  he  informed  us  again  of  the  disposition  of  Spain  with 
respect  to  the  Mississippi,  and  the  conduct  of  the  government 
with  regard  to  it.  To  the  debility  of  the  Confederation  alone 
may  justly  be  imputed  every  cause  of  complaint  on  this  subject. 
Whenever  gentlemen  will  bring  forward  their  objections,  I 
trust  we  can  prove  that  no  danger  to  the  navigation  of  that 
river  can  arise  from  the  adoption  of  this  Constitution.  I  beg 
those  gentlemen  who  may  be  affected  by  it,  to  suspend  their 
judgment  till  they  hear  it  discussed.  Will,  says  he,  the  adop 
tion  of  this  Constitution  pay  our  debts?  It  will  compel  the 
states  to  pay  their  quotas.  Without  this,  Virginia  will  be  un 
able  to  pay.  Unless  all  the  states  pay,  she  cannot.  Though 
the  states  will  not  coin  money  (as  we  are  told)  yet  this  govern 
ment  will  bring  forth  and  proportion  all  the  strength  of  the 
Union.  That  economy  and  industry  are  essential  to  our 
happiness,  will  be  denied  by  no  man.  But  the  present  govern 
ment  will  not  add  to  our  industry.  It  takes  away  the  incite 
ments  to  industry,  by  rendering  property  insecure  and 
unprotected.  It  is  the  paper  on  your  table  that  will  promote 
and  encourage  industry.  New  Hampshire  and  Rhode  Island 
have  rejected  it,  he  tells  us.  New  Hampshire,  if  my  informa 
tion  be  right,  will  certainly  adopt  it.  The  report  spread  in  this 
country,  of  which  I  have  heard,  is,  that  the  representatives  of 


DOCTRINES  OF  JOHN  MARSHALL          263 

that  state  having,  on  meeting,  found  they  were  instructed  to 
vote  against  it,  returned  to  their  constitutents  without  deter 
mining  the  question,  to  convince  them  of  their  being  mistaken, 
and  of  the  propriety  of  adopting  it. 

The  extent  of  the  country  is  urged  as  another  objection, 
as  being  too  great  for  a  republican  government.  This  objec 
tion  has  been  handed  from  author  to  author,  and  has  been  cer 
tainly  misunderstood  and  misapplied.  To  what  does  it  owe 
its  source?  To  observations  and  criticisms  on  governments, 
where  representation  did  not  exist.  As  to  the  legislative 
power,  was  it  ever  supposed  inadequate  to  any  extent?  Ex 
tent  of  country  may  render  it  difficult  to  execute  the  laws,  but 
not  to  legislate.  Extent  of  country  does  not  extend  the  power. 
What  will  be  sufficiently  energetic  and  operative  in  a  small 
territory,  will  be  feeble  when  extended  over  a  wide-extended 
country.  The  gentleman  tells  us  there  are  no  checks  in  this 
plan.  What  has  become  of  his  enthusiastic  eulogium  on  the 
American  spirit?  We  should  find  a  check  and  control,  when 
oppressed,  from  that  source.  In  this  country,  there  is  no  ex 
clusive  personal  stock  of  interest.  The  interest  of  the  com 
munity  is  blended  and  inseparably  connected  with  that  aid  of 
the  individual.  When  he  promotes  his  own,  he  promotes  that 
of  the  community.  When  we  consult  the  common  good,  we 
consult  our  own.  When  he  desires  such  checks  as  these,  he 
will  find  them  abundantly  here.  They  are  the  best  of  checks. 
What  has  become  of  his  eulogium  on  the  Virginia  Constitu 
tion?  Do  the  checks  in  this  plan  appear  less  excellent  than 
those  of  the  Constitution  of  Virginia?  If  the  checks  in  the 
Constitution  be  compared  to  the  checks  in  the  Virginia  Con 
stitution,  he  will  find  the  best  security  in  the  former. 

The  temple  of  liberty  was  complete,  said  he,  when  the  people 
of  England  said  to  their  king,  that  he  was  their  servant. 
What  are  we  to  learn  from  this?  Shall  we  embrace  such  a 
system  as  that  ?  Is  not  liberty  secure  with  us,  where  the  people 
hold  all  powers  in  their  own  hands,  and  delegate  them  cau 
tiously,  for  short  periods,  to  their  servants,  who  are  accountable 
for  the  smallest  trial-administration  ?  Where  is  the  nation 
that  can  boast  greater  security  than  we  do?  We  want  only 
a  system  like  the  paper  before  you,  to  strengthen  and  per 
petuate  this  security. 

The  honorable  gentleman  has  asked  if  there  be  any  safety 


264  THE  POLITICAL  AND  ECONOMIC 

or  freedom,  when  we  give  away  the  sword  and  the  purse. 
Shall  the  people  at  large  hold  the  sword  and  the  purse  without 
the  interposition  of  their  representatives?  Can  the  whole  ag 
gregate  community  act  personally?  I  apprehend  that  every 
gentleman  will  see  the  impossibility  of  this.  Must  they,  then, 
not  trust  them  to  others?  To  whom  are  they  to  trust  them 
but  to  their  representatives,  who  are  accountable  for  their  con 
duct  ?  He  represents  secrecy  as  unnecessary,  and  produces  the 
British  government  as  a  proof  of  its  inutility.  Is  there  no 
secrecy  there?  When  deliberating  on  the  propriety  of  de 
claring  war,  or  on  military  arrangements,  do  they  deliberate 
in  the  open  fields  ?  No,  sir.  The  British  government  affords 
secrecy  when  necessary,  and  so  ought  every  government.  In 
this  plan,  secrecy  is  only  used  when  it  would  be  fatal  and  per 
nicious  to  publish  the  schemes  of  government.  We  are 
threatened  with  the  loss  of  our  liberties  by  the  possible  abuse 
of  power,  notwithstanding  the  maxim,  that  those  who  give  may 
take  away.  It  is  the  people  that  give  power,  and  can  take  it 
back.  What  shall  restrain  them  ?  They  are  the  masters  who 
give  it,  and  for  whom  their  servants  hold  it. 

He  then  argues  against  the  system,  because  it  does  not 
resemble  the  British  government  in  this  —  that  the  same  power 
that  declares  war  has  not  the  means  of  carrying  it  on.  Are 
the  people  of  England  more  secure,  if  the  Commons  have  no 
voice  in  declaring  war?  or  are  we  less  secure  by  having  the 
Senate  joined  with  the  President?  It  is  an  absurdity,  says 
the  worthy  member,  that  the  same  man  should  obey  two  mas 
ters  —  that  the  same  collector  should  gather  taxes  for  the 
general  government  and  the  state  legislature.  Are  they  not 
both  the  servants  of  the  people?  Are  not  Congress  and  the 
state  legislatures  the  agents  of  the  people,  and  are  they  not 
to  consult  the  good  of  the  people?  May  not  this  be  effected 
by  giving  the  same  officer  the  collection  of  both  taxes?  He 
tells  you  that  it  is  an  absurdity  to  adopt  before  you  amend. 
Is  the  object  of  your  adoption  to  mend  solely?  The  objects 
of  your  adoption  are  union,  safety  against  foreign  enemies, 
and  protection  against  faction  —  against  what  has  been  the 
destruction  of  all  republics.  These  impel  you  to  its  adop 
tion.  If  you  adopt  it,  what  shall  restrain  you  from  amending 
it,  if,  in  trying  it,  amendments  shall  be  found  necessary  ?  The 
government  is  not  supported  by  force,  but  depends  on  our 


DOCTRINES  OF  JOHN  MARSHALL          265 

free  will.  When  experience  shall  show  us  any  inconveniences, 
we  can  then  correct  it.  But  until  we  have  experience  on  the 
subject,  amendments,  as  well  as  the  Constitution  itself,  are  to 
try.  Let  us  try  it,  and  keep  our  hands  free  to  change  it  when 
necessary.  If  it  be  necessary  to  change  government,  let  us 
change  that  government  which  has  been  found  to  be  defective. 
The  difficulty  we  find  in  amending  the  Confederation  will  not 
be  found  in  amending  this  Constitution.  Any  amendments, 
in  the  system  before  you,  will  not  go  to  a  radical  change;  a 
plain  way  is  pointed  out  for  the  purpose.  All  will  be  interested 
to  change  it,  and  therefore  all  exert  themselves  in  getting 
the  change.  There  is  such  a  diversity  of  sentiment  in  human 
minds,  that  it  is  impossible  we  shall  ever  concur  in  one  sys 
tem  till  we  try  it.  The  power  given  to  the  general  govern 
ment  over  the  time,  place,  and  manner  of  election,  is  also 
strongly  objected  to.  When  we  come  to  that  clause  we  can 
prove  it  is  highly  necessary,  and  not  dangerous. 

The  worthy  member  has  concluded  his  observations  by 
many  eulogiums  on  the  British  constitution.  It  matters  not 
to  us  whether  it  be  a  wise  one  or  not.  I  think  that,  for  Amer 
ica  at  least,  the  government  on  your  table  is  very  much  su 
perior  to  it.  I  ask  you  if  your  House  of  Representatives 
would  be  better  than  it  is,  if  a  hundredth  part  of  the  people 
were  to  elect  a  majority  of  them.  If  your  Senators  were  for 
life,  would  they  be  more  agreeable  to  you?  If  your  President 
were  not  accountable  to  you  for  his  conduct, —  if  it  were  a 
constitutional  maxim,  that  he  could  do  no  wrong, —  would  you 
be  safer  than  you  are  now?  If  you  can  answer,  Yes,  to  these 
questions,  then  adopt  the  British  constitution.  If  not,  then, 
good  as  that  government  may  be,  this  is  better.  The  worthy 
gentleman  who  was  last  up,  said  the  confederacies  of  ancient 
and  modern  times  were  not  similar  to  ours,  and  that  conse 
quently  reasons  which  applied  against  them  could  not  be  urged 
against  it.  Do  they  not  hold  out  one  lesson  very  useful  to 
us?  However  unlike  in  other  respects,  they  resemble  it  in 
its  total  inefficacy.  They  warn  us  to  shun  their  calamities, 
and  place  in  our  government  those  necessary  powers,  the  want 
of  which  destroyed  them.  I  hope  we  shall  avail  ourselves 
of  their  misfortunes,  without  experiencing  them.  There  was 
something  peculiar  in  one  observation  he  made.  He  said  that 
those  who  governed  the  cantons  of  Switzerland  were  purchased 


266  THE  POLITICAL  AND  ECONOMIC 

by  foreign  powers,  which  was  the  cause  of  their  uneasiness 
and  trouble. 

How  does  this  apply  to  us?  If  we  adopt  such  a  govern 
ment  as  theirs,  will  it  not  be  subject  to  the  same  inconvenience? 
Will  not  the  same  cause  produce  the  same  effect  ?  What  shall 
protect  us  from  it?  What  is  our  security?  He  then  pro 
ceeded  to  say  that  the  causes  of  war  are  removed  from  us ;  that 
we  are  separated  by  the  sea  from  the  powers  of  Europe,  and 
need  not  be  alarmed.  Sir,  the  sea  makes  them  neighbors  to  us. 
Though  an  immense  ocean  divides  us,  we  may  speedily  see 
them  with  us.  What  dangers  may  we  not  apprehend  to  our 
commerce?  Does  not  our  naval  weakness  invite  an  attack 
on  our  commerce?  May  not  the  Algerines  seize  our  vessels? 
Cannot  they,  and  every  other  predatory  or  maritime  nation, 
pillage  our  ships  and  destroy  our  commerce,  without  subject 
ing  themselves  to  any  inconvenience  ?  He  would,  he  said,  give 
the  general  government  all  necessary  powers.  If  anything 
be  necessary,  it  must  be  so  to  call  forth  the  strength  of  the 
Union  when  we  may  be  attacked,  or  when  the  general  purposes 
of  America  require  it.  The  worthy  gentleman  then  proceeded 
to  show,  that  our  present  exigencies  are  greater  than  they  will 
ever  be  again. 

Who  can  penetrate  into  futurity?  How  can  any  man  pre 
tend  to  say  that  our  future  exigencies  will  be  less  than  our 
present  ?  The  exigencies  of  nations  have  been  generally  com 
mensurate  to  their  resources.  It  would  be  the  utmost  impolicy 
to  trust  to  a  mere  possibility  of  not  being  attacked,  or  obliged 
to  exert  the  strength  of  the  community.  He  then  spoke  of 
a  selection  of  particular  objects  by  Congress,  which  he  .says 
must  necessarily  be  oppressive;  that  Congress,  for  instance, 
might  select  taxes,  and  that  all  but  landholders  would  escape. 
Cannot  Congress  regulate  the  taxes  so  as  to  be  equal  on  all 
parts  of  the  community?  Where  is  the  absurdity  of  having 
thirteen  revenues  ?  Will  they  clash  with,  or  injure,  each  other  ? 
If  not,  why  cannot  Congress  make  thirteen  distinct  laws,  and 
impose  the  taxes  on  the  general  objects  of  taxation  in  each 
state,  so  that  all  persons  of  the  society  shall  pay  equally,  as  they 
ought  ? 

He  then  told  you  that  your  Continental  government  will 
call  forth  the  virtue  and  talents  of  America.  This  being  the 
case,  will  they  encroach  on  the  power  of  the  state  govern- 


DOCTRINES  OF  JOHN  MARSHALL          267 

ments?  Will  our  most  virtuous  and  able  citizens  wantonly 
attempt  to  destroy  the  liberty  of  the  people?  Will  the  most 
virtuous  act  the  most  wickedly?  I  differ  in  opinion  from  the 
worthy  gentleman.  I  think  the  virtue  and  talents  of  the  mem 
bers  of  the  general  government  will  tend  to  the  security,  in 
stead  of  the  destruction,  of  our  liberty.  I  think  that  the 
power  of  direct  taxation  is  essential  to  the  existence  of  the 
general  government,  and  that  it  is  safe  to  grant  it.  If  this 
power  be  not  necessary,  and  as  safe  from  abuse  as  any  dele 
gated  power  can  possibly  be,  then  I  say  that  the  plan  before 
you  is  unnecessary;  for  it  imports  not  what  system  we  have, 
unless  it  have  the  power  of  protecting  us  in  time  of  peace  and 
war. 

SPEECH  OF  JOHN  MARSHALL 

Delivered   in   the  Virginia   Convention,   June  28,    1788.     The    ist   and  2d 

sections  of  the  3d  Article  of  the  Constitution  being  under 

consideration 

Mr.  Chairman :  This  part  of  the  plan  before  us  is  a  great 
improvement  on  that  system  from  which  we  are  now  departing. 
Here  are  tribunals  appointed  for  the  decision  of  controversies 
which  were  before  either  not  at  all,  or  improperly,  provided 
for.  That  many  benefits  will  result  from  this  to  the  members 
of  the  collective  society,  every  one  confesses.  Unless  its  or 
ganization  be  defective,  and  so  constructed  as  to  injure,  in 
stead  of  accommodating,  the  convenience  of  the  people,  it  merits 
our  approbation.  After  such  a  candid  and  fair  discussion 
by  those  gentlemen  who  support  it, —  after  the  very  able 
manner  in  which  they  have  investigated  and  examined  it, —  I 
conceived  it  would  be  no  longer  considered  as  so  very  defective, 
and  that  those  who  opposed  it  would  be  convinced  of  the  im 
propriety  of  some  of  their  objections.  But  I  perceive  they  still 
continue  the  same  opposition.  Gentlemen  have  gone  on  an 
idea  that  the  federal  courts  will  not  determine  the  causes 
which  may  come  before  them  with  the  same  fairness  and  im 
partiality  with  which  other  courts  decide.  What  are  the 
reasons  of  this  supposition?  Do  they  draw  them  from  the 
manner  in  which  the  judges  are  chosen,  or  the  tenure  of  their 
office?  What  is  it  that  makes  us  trust  our  judges?  Their 
independence  in  office,  and  manner  of  appointment.  Are  not 
the  judges  of  the  federal  chosen  with  as  much  wisdom  as  the 


268  THE  POLITICAL  AND  ECONOMIC 

judges  of  the  state  governments?  Are  they  not  equally,  if  not 
more  independent?  If  so,  shall  we  not  conclude  that  they  will 
decide  with  equal  impartiality  and  candor?  If  there  be  as 
much  wisdom  and  knowledge  in  the  United  States  as  in  a 
particular  state,  shall  we  conclude  that  the  wisdom  and  knowl 
edge  will  not  be  equally  exercised  in  the  selection  of  judges? 

The  principle  on  which  they  object  to  the  federal  jurisdic 
tion  seems,  to  me,  to  be  founded  on  a  belief  that  there  will 
not  be  a  fair  trial  had  in  those  courts.  If  this  committee  will 
consider  it  fully,  they  will  find  it  has  no  foundation,  and  that 
we  are  as  secure  there  as  any  where  else.  What  mischief  re 
sults  from  some  causes  being  tried  there?  Is  there  not  the 
utmost  reason  to  conclude  that  judges,  wisely  appointed,  and 
independent  in  their  office,  will  never  countenance  any  unfair 
trial?  What  are  the  subjects  of  its  jurisdiction?  Let  us  ex 
amine  them  with  an  expectation  that  causes  will  be  as  candidly 
tried  there  as  elsewhere,  and  then  determine.  The  objection 
which  was  made  by  the  honorable  member  who  was 
first  up  yesterday  [Mr.  Mason]  has  been  so  fully  re 
futed  that  it  is  not  worth  while  to  notice  it.  He  ob 
jected  to  Congress'  having  power  to  create  a  number 
of  inferior  courts,  according  to  the  necessity  of  public 
circumstances.  I  had  an  apprehension  that  those  gentle 
men  who  placed  no  confidence  in  Congress  would  object 
that  there  might  be  no  inferior  courts.  I  own  that  I  thought 
those  gentlemen  would  think  there  would  be  no  inferior  courts, 
as  it  depended  on  the  will  of  Congress,  but  that  we  should  be 
dragged  to  the  centre  of  the  Union.  But  I  did  not  conceive 
that  the  power  of  increasing  the  number  of  courts  could  be 
objected  to  by  any  gentleman,  as  it  would  remove  the  incon 
venience  of  being  dragged  to  the  centre  of  the  United  States. 
I  own  that  the  power  of  creating  a  number  of  courts  is,  in  my 
estimation,  so  far  from  being  a  defect,  that  it  seems  necessary 
to  the  perfection  of  this  system.  After  having  objected  to  the 
number  and  mode,  he  objected  to  the  subject  matter  of  their 
cognizance.  [Here  Mr.  Marshall  read  the  2d  section.] 

These,  sir,  are  the  points  of  federal  jurisdiction  to  which 
he  objects,  with  few  exceptions.  Let  us  examine  each  of  them 
with  a  supposition  that  the  same  partiality  will  be  observed 
there  as  in  other  courts,  and  then  see  if  any  mischief  will  re 
sult  from  them.  With  respect  to  its  cognizance  in  all  cases 


DOCTRINES  OF  JOHN  MARSHALL          269 

arising  under  the  Constitution  and  the  laws  of  the  United 
States,  he  says  that,  the  laws  of  the  United  States  being 
paramount  to  the  laws  of  the  particular  states,  there  is  no  case 
but  what  this  will  extend  to.  Has  the  government  of  the 
United  States  power  to  make  laws  on  every  subject?  Does  he 
understand  it  so?  Can  they  make  laws  affecting  the  mode  of 
transferring  property,  or  contracts,  or  claims,  between  citizens 
of  the  same  state  ?  Can  they  go  beyond  the  delegated  powers  ? 
If  they  were  to  make  a  law  not  warranted  by  any  of  the 
powers  enumerated,  it  would  be  considered  by  the  judges  as 
an  infringement  of  the  Constitution  which  they  are  to  guard. 
They  would  not  consider  such  a  law  as  coming  under  their 
jurisdiction.  They  would  declare  it  void.  It  will  annihilate 
the  state  courts,  says  the  honorable  gentleman.  Does  not 
every  gentleman  here  know  that  the  causes  in  our  courts  are 
more  numerous  than  they  can  decide,  according  to  their  pres 
ent  construction?  Look  at  the  dockets.  You  will  find  them 
crowded  with  suits,  which  the  life  of  man  will  not  see  deter 
mined.  If  some  of  these  suits  be  carried  to  other  courts, 
will  it  be  wrong?  They  will  still  have  business  enough. 

Then  there  is  no  danger  that  particular  subjects,  small  in 
proportion,  being  taken  out  of  the  jurisdiction  of  the  state 
judiciaries,  will  render  them  useless  and  of  no  effect.  Does 
the  gentleman  think  that  the  state  courts  will  have  no  cog 
nizance  of  cases  not  mentioned  here?  Are  there  any  words 
in  this  Constitution  which  exclude  the  courts  of  the  states 
from  those  cases  which  they  now  possess?  Does  the  gentle 
man  imagine  this  to  be  the  case?  Will  any  gentleman  believe 
it?  Are  not  controversies  respecting  lands  claimed  under  the 
grants  of  different  states  the  only  controversies  between  citi 
zens  of  the  same  state  which  the  federal  judiciary  can  take 
cognizance  of?  The  case  is  so  clear,  that  to  prove  it  would 
be  a  useless  waste  of  time.  The  state  courts  will  not  lose  the 
jurisdiction  of  the  causes  they  now  decide.  They  have  a  con 
currence  of  jurisdiction  with  the  federal  courts  in  those  cases 
in  which  the  latter  have  cognizance. 

How  disgraceful  is  it  that  the  state  courts  cannot  be  trusted ! 
says  the  honorable  gentleman.  What  is  the  language  of  the 
Constitution?  Does  it  take  away  their  jurisdiction?  Is  it 
not  necessary  that  the  federal  courts  should  have  cognizance 
of  cases  arising  under  the  Constitution,  and  the  laws,  of  the 


270  THE  POLITICAL  AND  ECONOMIC 

United  States?  What  is  the  service  or  purpose  of  a  judiciary, 
but  to  execute  the  laws  in  a  peacable,  orderly  manner,  without 
shedding  blood,  or  creating  a  contest,  or  availing  yourselves 
of  force?  If  this  be  the  case,  where^  can  its  jurisdiction  be 
more  necessary  than  here? 

To  what  quarter  will  you  look  for  protection  from  an  in 
fringement  on  the  Constitution,  if  you  will  not  give  the  power 
to  the  judiciary?  There  is  no  other  body  that  can  afford  such 
a  protection.  But  the  honorable  member  objects  to  it,  because 
he  says  that  the  officers  of  the  government  will  be  screened 
from  merited  punishment  by  the  federal  judiciary.  The  fed 
eral  sheriff,  says  he,  will  go  into  a  poor  man's  house  and  beat 
him,  or  abuse  his  family,  and  the  federal  court  will  protect 
him.  Does  any  gentleman  believe  this?  Is  it  necessary  that 
the  officers  will  commit  a  trespass  on  the  property  or  persons 
of  those  with  whom  they  are  to  transact  business?  Will  such 
;..  great  insults  on  the  people  of  this  country  be  allowable  ?  Were 
a  law  made  to  authorize  them,  it  would  be  void.  The  in 
jured  man  would  trust  to  a  tribunal  in  his  neighborhood.  To 
such  a  tribunal  he  would  apply  for  redress,  and  get  it.  There 
is  no  reason  to  fear  that  he  would  not  meet  that  justice  there 
which  his  country  will  be  ever  willing  to  maintain.  But,  on 
appeal,  says  the  honorable  gentleman,  what  chance  is  there  to 
obtain  justice?  This  is  founded  on  an  idea  that  they  will  not 
be  impartial.  There  is  no  clause  in  the  Constitution  which 
bars  the  individual  member  injured  from  applying  to  the  state 
courts  to  give  him  redress.  He  says  that  there  is  no  instance 
of  appeals  as  to  fact  in  common-law  cases.  The  contrary  is 
well  known  to  you,  Mr.  Chairman,  to  be  the  case  in  this  com 
monwealth.  With  respect  to  mills,  roads,  and  other  cases, 
appeals  lie  from  the  inferior  to  the  superior  court,  as  to 
fact  as  well  as  law.  Is  it  a  clear  case,  that  there  can  be  no  case 
in  common  law  in  which  an  appeal  as  to  fact  might  be  proper 
and  necessary  ?  Can  you  not  conceive  a  case  where  it  would  be 
productive  of  advantages  to  the  people  at  large  to  submit  to 
that  tribunal  the  final  determination,  involving  facts  as  well  as 
law?  Suppose  it  should  be  deemed  for  the  convenience  of  the 
citizens  that  those  things  which  concerned  foreign  ministers 
should  be  tried  in  the  inferior  courts;  if  justice  could  be  done, 
the  decision  would  satisfy  all.  But  if  an  appeal  in  matters 
of  facts  could  not  be  carried  to  the  superior  court,  then  it 


DOCTRINES  OF  JOHN  MARSHALL          271 

would  result  that  such  cases  could  not  be  tried  before  the  in 
ferior  courts,  for  fear  of  injurious  and  partial  decisions. 

But,  sir,  where  is  the  necessity  of  discriminating  between  the 
three  cases  of  chancery,  admiralty,  and  common  law?  Why 
not  leave  it  to  Congress  ?  Will  it  enlarge  their  powers  ?  Is  it 
necessary  for  them  wantonly  to  infringe  your  rights?  Have 
you  any  thing  to  apprehend,  when  they  can  in  no  case  abuse 
their  power  without  rendering  themselves  hateful  to  the  peo 
ple  at  large?  When  this  is  the  case,  something  may  be  left 
to  the  legislature  freely  chosen  by  ourselves,  from  among  our 
selves,  who  are  to  share  the  burdens  imposed  upon  the  com 
munity,  and  who  can  be  changed  at  our  pleasure.  Where 
power  may  be  trusted,  and  there  is  no  motive  to  abuse  it,  it 
seems  to  me  to  be  as  well  to  leave  it  undetermined  as  to  fix 
it  in  the  Constitution. 

With  respect  to  disputes  between  a  state  and  the  citizens 
of  another  state,  its  jurisdiction  has  been  decried  with  unusual 
vehemence.  I  hope  that  no  gentleman  will  think  that  a  state 
will  be  called  at  the  bar  of  the  federal  court.  Is  there  no  such 
case  at  present  ?  Are  there  not  many  cases  in  which  the  legis 
lature  of  Virginia  is  a  party,  and  yet  the  state  is  not  sued? 
Is  it  not  rational  to  suppose  that  the  sovereign  power  should 
be  dragged  before  a  court.  The  intent  is,  to  enable  states  to 
recover  claims  of  individuals  residing  in  other  states.  I  con 
tend  this  construction  is  warranted  by  the  words.  But,  say 
they,  there  will  be  partiality  in  it  if  a  state  cannot  be  defendant 
-  if  an  individual  cannot  proceed  to  obtain  judgment  against 
a  state,  though  he  may  be  sued  by  a  state.  It  is  necessary  to 
be  so,  and  cannot  be  avoided.  I  see  a  difficulty  in  making  a 
state  defendant,  which  does  not  prevent  its  being  plaintiff.  If 
this  be  only  what  cannot  be  avoided,  why  object  to  the  system 
on  that  account?  If  an  individual  has  a  just  claim  against 
any  particular  state,  is  it  to  be  presumed  that,  on  application 
to  its  legislature,  he  will  not  obtain  satisfaction?  But  how 
could  a  state  recover  any  claim  from  a  citizen  of  another  state, 
without  the  establishment  of  these  tribunals? 

The  honorable  member  objects  to  suits  being  instituted  in 
the  federal  courts,  by  the  citizens  of  one  state,  against  the  citi 
zens  of  another  state.  Were  I  to  contend  that  this  was  neces 
sary  in  all  cases,  and  that  the  government  without  it  would 
be  defective,  I  should  not  use  my  own  judgment.  But  are  not 


272  THE  POLITICAL  AND  ECONOMIC 

the  objections  to  it  carried  too  far?  Though  it  may  not  in 
general  be  absolutely  necessary,  a  case  may  happen,  as  has  been 
observed,  in  which  a  citizen  of  one  state  ought  to  be  able  to 
recur  to  this  tribunal,  to  recover  a  claim  from  the  citizen  of 
another  state.  What  is  the  evil  which  this  can  produce?  Will 
he  get  more  than  justice  there?  The  independence  of  the 
judge  forbids  it.  What  has  he  to  get?  Justice.  Shall  we 
object  to  this,  because  the  citizens  of  another  state  can  obtain 
justice  without  applying  to  our  state  courts?  It  may  be  neces 
sary  with  respect  to  the  laws  and  regulations  of  commerce, 
which  Congress  may  make.  It  may  be  necessary  in  cases  of 
debt,  and  some  other  controversies.  In  claims  for  land,  it  is 
not  necessary,  but  it  is  not  dangerous.  In  the  court  of  which 
state  will  it  be  instituted?  said  the  honorable  gentleman.  It 
will  be  instituted  in  the  court  of  the  state  where  the  defendant 
resides,  where  the  law  can  come  at  him,  and  nowhere  else. 
By  the  laws  of  which  state  will  it  be  determined  ?  said  he.  By 
the  laws  of  the  state  where  the  contract  was  made.  According 
to  those  laws,  and  those  only,  can  it  be  decided.  Is  this  a 
novelty  ?  No ;  it  is  a  principle  in  the  jurisprudence  of  this  com 
monwealth.  If  a  man  contracted  a  debt  in  the  East  Indies, 
and  it  was  sued  for  here,  the  decision  must  be  consonant  to  the 
laws  of  that  country.  Suppose  a  contract  made  in  Maryland, 
where  the  annual  interest  is  at  six  per  centum,  and  a  suit  in 
stituted  for  it  in  Virginia;  what  interest  would  be  given  now, 
without  any  federal  aid  ?  The  interest  of  Maryland  most  cer 
tainly;  and  if  the  contract  had  been  made  in  Virginia,  and  suit 
brought  in  Maryland,  the  interest  of  Virginia  must  be  given, 
without  doubt.  It  is  now  to  be  governed  by  the  laws  of  that 
state  where  the  contract  was  made.  The  laws  which  governed 
the  contract  at  its  formation  govern  it  in  its  decision.  To 
preserve  the  peace  of  the  Union  only,  its  jurisdiction  in  this 
case  ought  to  be  recurred  to.  Let  us  consider  that,  when  the 
citizens  of  one  state  carry  on  trade  in  another  state,  much  must 
be  due  to  the  one  from  the  other,  as  is  the  case  between 
North  Carolina  and  Virginia.  Would  not  the  refusal  of  jus 
tice  to  our  citizens,  from  the  courts  of  North  Carolina,  produce 
disputes  between  the  states?  Would  the  federal  judiciary 
swerve  from  their  duty  in  order  to  give  partial  and  unjust 
decisions? 

The  objection  respecting  the  assignment  of  a  bond  to  a 


DOCTRINES  OF  JOHN  MARSHALL          273 

citizen  of  another  state  has  been  fully  answered.  But  sup 
pose  it  were  to  be  tried,  as  he  says ;  what  would  be  given  more 
than  was  actually  due  in  the  case  mentioned?  It  is  possible 
in  our  courts,  as  they  now  stand,  to  obtain  a  judgment  for  more 
than  justice.  But  the  court  of  chancery  grants  relief.  Would 
it  not  be  so  in  the  federal  court?  Would  not  depositions  be 
taken  to  prove  the  payments,  and  if  proved,  would  not  the 
decision  of  the  court  be  accordingly? 

He  objects,  in  the  next  place,  to  its  jurisdiction  in  contro 
versies  between  a  state  and  a  foreign  state.  Suppose,  says  he, 
in  such  a  suit,  a  foreign  state  is  cast ;  will  she  be  bound  by  the 
decision?  If  a  foreign  state  brought  a  suit  against  the  com 
monwealth  of  Virginia,  would  she  not  be  barred  from  the 
claim  if  the  federal  judiciary  thought  it  unjust?  The  previous 
consent  of  the  parties  is  necessary;  and,  as  the  federal  judi 
ciary  will  decide,  each  party  will  aquiesce.  It  will  be  the 
means  of  preventing  disputes  with  foreign  nations.  On  an  at 
tentive  consideration  of  these  points,  I  trust  every  part  will  ap 
pear  satisfactory  to  the  committee. 

The  exclusion  of  trial  by  jury,  in  this  case,  he  urged  to 
prostrate  our  rights.  Does  the  word  court  only  mean  the 
judges?  Does  not  the  determination  of  a  jury  necessarily 
lead  to  the  judgment  of  the  court?  Is  there  any  thing  here 
which  gives  the  judges  exclusive  jurisdiction  of  matters  of 
fact?  What  is  the  object  of  a  jury  trial?  To  inform  the 
court  of  the  facts.  When  a  court  has  cognizance  of  facts, 
does  it  not  follow  that  they  can  make  inquiry  by  a  jury?  It 
is  impossible  to  be  otherwise.  I  hope  that  in  this  country, 
where  impartiality  is  so  much  admired,  the  laws  will  direct 
facts  to  be  ascertained  by  a  jury.  But,  says  the  honorable 
gentleman,  the  juries  in  the  ten  miles  square  will  be  mere  tools 
of  parties,  with  which  he  would  not  trust  his  person  or  prop 
erty  ;  which,  he  says,  he  would  rather  leave  to  the  court.  Be 
cause  the  government  may  have  a  district  of  ten  miles  square, 
will  no  man  stay  there  but  the  tools  and  officers  of  the  govern 
ment  ?  Will  nobody  else  be  found  there  ?  Is  it  so  in  any  other 
part  of  the  world,  where  a  government  has  legislative  power? 
Are  there  none  but  officers,  and  tools  of  the  government  of 
Virginia,  in  Richmond?  Will  there  not  be  independent  mer 
chants,  and  respectable  gentlemen  of  fortune,  within  the  ten 
miles  square?  Will  there  not  be  worthy  farmers  and  median- 


274  THE  POLITICAL  AND  ECONOMIC 

ics?  Will  not  a  good  jury  be  found  there,  as  well  as  any 
where  else?  Will  the  officers  of  the  government  become 
improper  to  be  on  a  jury?  What  is  it  to  the  government 
whether  this  man  or  that  man  succeeds?  It  is  all  one  thing. 
Does  the  Constitution  say  that  juries  shall  consist  of  officers, 
or  that  the  Supreme  Court  shall  be  held  in  the  ten  miles  square  ? 
It  was  acknowledged,  by  the  honorable  member,  that  it  was 
secure  in  England.  What  makes  it  secure  there?  Is  it  their 
constitution?  What  part  of  their  constitution  is  there  that  the 
Parliament  cannot  change?  As  the  preservation  of  this 
right  is  in  the  hands  of  Parliament,  and  it  has  ever  been  held 
sacred  by  them,  will  the  government  of  America  be  less  honest 
than  that  of  Great  Britain  ?  Here  a  restriction  is  to  be  found. 
The  jury  is  not  to  be  brought  out  of  the  state.  There  is  no 
such  restriction  in  that  government;  for  the  laws  of  Parlia 
ment  decide  every  thing  respecting  it.  Yet  gentlemen  tell  us 
that  there  is  safety  there,  and  nothing  here  but  danger.  It 
seems  to  me  that  the  laws  of  the  United  States  will  generally 
secure  trials  by  a  jury  of  the  vicinage,  or  in  such  manner  as 
will  be  most  safe  and  convenient  for  the  people. 

But  it  seems  that  the  right  of  challenging  the  jurors  is  not 
secured  in  this  Constitution.  Is  this  done  by  our  own  Consti 
tution,  or  by  any  provision  of  the  English  government?  Is 
it  done  by  their  Magna  Charta,  or  bill  of  rights?  This  privi 
lege  is  founded  on  their  laws.  If  so,  why  should  it  be  ob 
jected  to  the  American  Constitution  that  it  is  not  inserted  in 
it?  If  we  are  secure  in  Virginia  without  mentioning  it  in  our 
Constitution,  why  should  not  this  security  be  found  in  the 
federal  court? 

The  honorable  gentleman  said  much  about  the  quitrents 
in  the  Northern  Neck.  I  will  refer  it  to  the  honorable  gentle 
man  himself.  Has  he  not  acknowledged  that  there  was  no 
complete  title?  Was  he  not  satisfied  that  the  right  of  the 
legal  representative  of  the  proprietor  did  not  exist  at  the 
time  he  mentioned?  If  so,  it  cannot  exist  now.  I  will  leave 
it  to  those  gentlemen  who  come  from  that  quarter.  I  trust 
they  will  not  be  intimidated,  on  this  account,  in  voting  on  this 
question.  A  law  passed  in  1782,  which  secures  this.  He  says 
that  many  poor  men  may  be  harassed  and  injured  by  the  rep 
resentatives  of  Lord  Fairfax.  If  he  has  no  right,  this  cannot 
be  done.  If  he  has  this  right,  and  comes  to  Virginia,  what 


DOCTRINES  OF  JOHN  MARSHALL          275 

laws  will  his  claims  be  determined  by?  By  those  of  this  state. 
By  what  tribunals  will  they  be  determined?  By  our  state 
courts.  Would  not  the  poor  man,  who  was  oppressed  by  an 
unjust  prosecution,  be  abundantly  protected  and  satisfied  by 
the  temper  of  his  neighbors,  and  would  he  not  find  ample 
justice?  What  reason  has  the  honorable  member  to  appre 
hend  partiality  or  injustice?  He  supposes  that,  if  the  judges 
be  judges  of  both  the  federal  and  state  courts,  they  will  incline 
in  favor  of  one  government.  If  such  contests  should  arise, 
who  could  more  properly  decide  them  than  those  who  are  to 
swear  to  do  justice?  If  we  can  expect  a  fair  decision  any 
where,  may  we  not  expect  justice  to  be  done  by  the  judges 
of  both  the  federal  and  state  governments?  But,  says  the 
honorable  member,  laws  may  be  executed  tyrannically.  Where 
is  the  independency  of  your  judges?  If  a  law  be  exercised 
tyrannically  in  Virginia,  to  what  can  you  trust?  To  your 
judiciary.  What  security  have  you  for  justice?  Their  inde 
pendence.  Will  it  not  be  so  in  the  federal  court  ? 

Gentlemen  ask,  What  is  meant  by  law  cases,  and  if  they  be 
not  distinct  from  facts?  Is  there  no  law  arising  on  cases  of 
equity  and  admiralty?  Look  at  the  acts  of  Assembly.  Have 
you  not  many  cases  where  law  and  fact  are  blended  ?  Does  not 
the  jurisdiction  in  point  of  law  as  well  as  fact,  find  itself  com 
pletely  satisfied  in  law  and  fact?  The  honorable  gentleman 
says  that  no  law  of  Congress  can  make  any  exception  to  the 
federal  appellate  jurisdiction  of  facts  as  well  as  law.  He  has 
frequently  spoken  of  technical  terms,  and  the  meaning  of  them. 
What  is  the  meaning  of  the  term  exception?  Does  it  not 
mean  an  alteration  and  diminution?  Congress  is  empowered 
to  make  exceptions  to  the  appellate  jurisdiction,  as  to  law  and 
fact,  of  the  Supreme  Court.  These  exceptions  certainly  go 
as  far  as  the  legislature  may  think  proper  for  the  interest 
and  liberty  of  the  people.  Who  can  understand  this  word,  ex 
ception,  to  extend  to  one  case  as  well  as  the  other?  I  am  per 
suaded  that  a  reconsideration  of  this  case  will  convince  the 
gentleman  that  he  was  mistaken.  This  may  go  to  the  cure  of 
the  mischief  apprehended.  Gentlemen  must  be  satisfied  that 
this  power  will  not  be  so  much  abused  as  they  have  said. 

The  honorable  member  says  that  he  derives  no  consolation 
from  the  wisdom  and  integrity  of  the  legislature,  because  we 
call  them  to  rectify  defects  which  it  is  our  duty  to  remove.  We 


276  THE  POLITICAL  AND  ECONOMIC 

ought  well  to  weigh  the  good  and  evil  before  we  determine. 
We  ought  to  be  well  convinced  that  the  evil  will  be  really 
produced  before  we  decide  against  it.  If  we  be  convinced 
that  the  good  greatly  preponderates,  though  there  be  small 
defects  in  it,  shall  we  give  up  that  which  is  really  good,  when 
we  can  remove  the  little  mischief  it  may  contain,  in  the  plain, 
easy  method  pointed  out  in  the  system  itself? 

I  was  astonished  when  I  heard  the  honorable  gentleman 
say  that  he  wished  the  trial  by  jury  to  be  struck  out  entirely. 
Is  there  no  justice  to  be  expected  by  a  jury  of  our  fellow 
citizens?  Will  any  man  prefer  to  be  tried  by  a  court,  when 
the  jury  is  to  be  of  his  countrymen,  and  probably  of  his  vici 
nage?  We  have  reason  to  believe  the  regulations  with  respect 
to  juries  will  be  such  as  shall  be  satisfactory.  Because  it 
does  not  contain  all,  does  it  contain  nothing?  But  I  conceive 
that  this  committee  will  see  there  is  safety  in  the  case,  and 
that  there  is  no  mischief  to  be  apprehended. 

He  states  a  case,  that  a  man  may  be  carried  from  a  federal 
to  an  anti-federal  corner  (and  vice  versa)  where  men  are  ready 
to  destroy  him.  Is  this  probable?  Is  it  presumable  that  they 
will  make  a  law  to  punish  men  who  are  of  different  opinions 
in  politics  from  themselves?  Is  it  presumable  that  they  will 
do  it  in  one  single  case,  unless  it  be  such  a  case  as  must  satisfy 
the  people  at  large?  The  good  opinion  of  the  people  at  large 
must  be  consulted  by  their  representatives;  otherwise,  mis 
chiefs  would  be  produced  which  would  shake  the  government 
to  its  foundation.  As  it  is  late,  I  shall  not  mention  all  the 
gentleman's  argument,  but  some  parts  of  it  are  so  glaring 
that  I  cannot  pass  them  over  in  silence.  He  says  that  the  es 
tablishment  of  these  tribunals,  and  more  particularly  in  their 
jurisdiction  of  controversies  between  citizens  of  these  states 
and  foreign  citizens  and  subjects,  is  like  a  retrospective  law. 
Is  there  no  difference  between  a  tribunal  which  shall  give  jus 
tice  and  effect  to  an  existing  right,  and  creating  a  right  that 
did  not  exist  before?  The  debt  or  claim  is  created  by  the 
individual.  He  has  bound  himself  to  comply  with  it.  Does 
the  creation  of  a  new  court  amount  to  a  retrospective  law  ? 

We  are  satisfied  with  the  provision  made  in  this  country 
on  the  subject  of  trial  by  jury.  Does  our  Constitution  direct 
trials  to  be  by  jury?  It  is  required  in  our  bill  of  rights,  which 
is  not  a  part  of  the  Constitution.  Does  any  security  arise 


DOCTRINES  OF  JOHN  MARSHALL          277 

from  hence  ?  Have  you  a  jury  when  a  judgment  is  obtained  on 
replevin  bond,  or  by  default  ?  Have  you  a  jury  when  a  motion 
is  made  for  the  commonwealth  against  an  individual ;  or  when 
a  motion  is  made  by  one  joint  obligor  against  another,  to  re 
cover  sums  paid  as  security?  Our  courts  decide  in  all  these 
cases,  without  the  intervention  of  a  jury;  yet  they  are  all 
civil  cases.  The  bill  of  rights  is  merely  recommendatory. 
Were  it  otherwise,  the  consequence  would  be  that  many  laws 
which  are  found  convenient  would  be  unconstitutional.  What 
does  the  government  before  you  say?  Does  it  exclude  the 
legislature  from  giving  a  trial  by  jury  in  civil  cases?  If  it 
does  not  forbid  its  exclusion,  it  is  on  the  same  footing  on 
which  your  state  government  stands  now.  The  legislature  of 
Virginia  does  not  give  a  trial  by  jury  where  it  is  not  necessary, 
but  gives  it  wherever  it  is  thought  expedient.  The  federal  leg 
islature  will  do  so  too,  as  it  is  formed  on  the  same  princi 
ples. 

The  honorable  gentleman  says  that  unjust  claims  will  be 
made,  and  the  defendant  had  better  pay  .them  than  go  to  the 
Supreme  Court.  Can  you  suppose  such  a  disposition  in  one  of 
your  citizens,  as  that,  to  oppose  another  man,  he  will  incur 
great  expenses?  What  will  he  gain  by  an  unjust  demand? 
Does  a  claim  establish  a  right?  He  must  bring  his  witnesses 
to  prove  his  claim.  If  he  does  not  bring  his  witnesses,  the 
expenses  must  fall  upon  him.  Will  he  go  on  a  calculation 
that  the  defendant  will  not  defend  it,  or  cannot  produce  a 
witness?  Will  he  incur  a  great  deal  of  expense,  from  a  de 
pendence  on  such  a  chance?  Those  who  know  human  nature, 
black  as  it  is,  must  know  that  mankind  are  too  well  attached 
to  their  interest  to  run  such  a  risk.  I  conceive  that  this  power 
is  absolutely  necessary,  and  not  dangerous ;  that,  should  it  be 
attended  by  little  inconveniences,  they  will  be  altered,  and  that 
they  can  have  no  interest  in  not  altering  them.  Is  there  any 
real  danger?  When  I  compare  it  to  the  exercise  of  the  same 
power  in  the  government  of  Virginia,  I  am  persuaded  there  is 
not.  The  federal  government  has  no  other  motive,  and  has 
every  reason  for  doing  right  which  the  members  of  our  state 
legislatures  have.  Will  a  man  on  the  eastern  shore  be  sent 
to  be  tried  in  Kentucky,  or  a  man  from  Kentucky  be  brought 
to  the  eastern  shore  to  have  his  trial?  A  government,  by  do 
ing  this,  would  destroy  itself.  I  am  convinced  the  trial  by 


278  THE  POLITICAL  AND  ECONOMIC 

jury  will  be  regulated  in  the  manner  most  advantageous  to 
the  community. 

SPEECH  OF  JOHN  MARSHALL  ON  THE  DEATH  OF 

WASHINGTON 
Delivered  December  18,   1799,  in  National  House  of  Representatives 

MR.  SPEAKER: 

The  melancholy  event  which  was  yesterday  announced 
with  doubt,  has  been  rendered  but  too  certain.  Our 
Washington  is  no  more!  The  Hero,  the  Sage,  and  the 
Patriot  of  America  —  the  man  on  whom,  in  times  of  danger, 
every  eye  was  turned,  and  all  hopes  were  placed  —  lives  now 
only  in  his  own  great  actions,  and  in  the  hearts  of  an  affec 
tionate  and  afflicted  people. 

If,  Sir,  it  had  not  been  usual  openly  to  testify  respect  for 
the  memory  of  those  whom  Heaven  had  selected  as  its  instru 
ments  for  dispensing  good  to  men,  yet  such  has  been  the  un 
common  worth,  and  such  the  extraordinary  incidents  which 
have  marked  the  life  of  him  whose  loss  we  all  deplore,  that 
the  whole  American  nation,  impelled  by  the  same  feelings, 
would  call  with  one  voice  for  a  public  manifestation  of  that 
sorrow  which  is  so  deep  and  so  universal. 

More  than  any  other  individual,  and  as  much  as  to  any  one 
individual  was  possible,  has  he  contributed  to  found  this,  our 
wide-spreading  empire,  and  to  give  the  Western  world  its  in 
dependence  and  freedom.  Having  effected  the  great  object  for 
which  he  was  placed  at  the  head  of  our  armies,  we  have  seen 
him  converting  the  sword  into  the  ploughshare,  and  voluntarily 
sinking  the  soldier  in  the  citizen^. 

Having  been  twice  unanimously  chosen  the  Chief  Magistrate 
of  a  free  people,  we  see  him,  at  a  time  when  his  re-election, 
with  the  universal,  could  not  have  been  doubted,  affording  to 
the  world  a  rare  instance  of  moderation,  by  withdrawing  from 
his  high  station  to  the  peaceful  walks  of  private  life. 

However  the  public  confidence  may  change,  and  the  public 
affections  fluctuate  witfi  respect  to  others,  yet,  with  respect  to 
him,  they  have  in  war  and  in  peace,  in  public  and  private  life, 
been  as  steady  as  his  own  firm  mind,  and  as  constant  as  his  own 
exalted  virtues. 

Let  us  then,  Mr.  Speaker,  pay  the  last  tribute  of  respect 


DOCTRINES  OF  JOHN  MARSHALL          279 

and  affection  to  our  departed  friend  —  let  the  Grand  Council 
of  the  nation  display  those  sentiments  which  the  nation  feels- 
For  this  purpose,  I  hold  in  my  hand  some  resolutions,  which 
I  will  take  the  liberty  to  offer  to  the  House. 

The  rumor  that  Washington  had  died  reached  Philadelphia 
the  day  before  the  above  speech  was  made, —  December  17. 
On  that  day  Marshall,  "  in  a  voice  that  bespoke  the  anguish 
of  his  mind  and  with  a  countenance  expressive  of  the  deepest 
regret,"  rose,  and  after  stating  the  calamity  that  had  probably 
befallen  the  country,  moved  an  adjournment  of  the  House. 
The  next  day,  with  "  suppressed  voice  and  deep  emotion,"  he 
made  the  above  speech.  When  we  recall  how  solicitous  Wash 
ington  was  that  Marshall  should  become  a  member  of  Con 
gress,  and  how  gratified  he  was  at  his  election,  we  cannot  but 
be  struck  with  the  circumstance  that  it  was  among  the  first 
of  Marshall's  duties  to  announce  the  death  of  the  illustrious 
Washington. 

The  resolutions  that  Marshall  mentioned  were  those  drafted 
by  General  Lee,  the  last  of  which  described  Washington  as 
"  first  in  war,  first  in  peace,  and  first  in  the  hearts  of  his  coun 
trymen." 


CHAPTER  VI 

THE  KERNEL  OF   MARSHALL'S  DECISIONS, THE  THINGS  THAT 

MADE   HIM    THE   EXPOUNDER   OF   THE   CONSTITUTION 

QUOTATIONS  made  from  the  decisions  of  Chief  Justice  Mar 
shall  show  precisely  what  his  political  and  economic  doctrines 
were. 

THE  PREAMBLE  AND  FORMATION  OF  THE  CONSTITUTION 

OF  U.  S. 

In  Barron  v.  Mayor,1  Chief  Justice  Marshall  gives  his  views 
on  the  formation  of  the  Constitution  as  follows: 

/ 

''  The  Constitution  of  the  United  States  was  ordained  and 
established  by  the  people  of  the  United  States,  for  themselves, 
for  their  own  government,  and  not  for  the  government  of  the 
individual  States.  The  people  of  the  United  States  framed 
such  a  government  for  the  United  States  as  they  supposed 
best  adapted  to  their  situation  and  best  calculated  to  promote 
\their  interests."  In  the  case  of  M'Culloch  v.  Maryland  2  Chief 
Justice  Marshall  says :  "  The  Convention  which  framed  the 
Constitution  was  indeed,  elected  by  the  State  legislatures.  But 
the  instrument,  when  it  came  from  their  hands,  was  a  mere 
proposal,  without  obligation  or  pretentions  to  it.  It  was  re 
ported  to  the  then  existing  Congress  of  the  United  States, 
with  a  request  that  it  might  '  be  submitted  to  a  Convention  of 
Delegates,  chosen  in  each  State  by  the  people  thereof,  under 
the  recommendation  of  its  legislatures,  for  their  assent  and 
ratification.'  This  mode  of  proceeding  was  adopted;  and  by 
the  Convention,  by  Congress,  and  by  the  State  Legislatures,  the 
instrument  was  submitted  to  the  people.  They  acted  upon  it 
in  the  only  manner  in  which  they  can  act  safely,  effectively, 
and  wisely,  on  such  a  subject,  by  assembling  in  Convention. 
It  is  true,  they  assembled  in  their  several  States, —  and  where 
else  should  they  have  assembled?  No  political  dreamer  was 

1  7  Peters,  247. 

2  4  Wheaton,  403. 

280 


DOCTRINES  OF  JOHN  MARSHALL          281 

ever  wild  enough  to  think  of  breaking  down  the  lines  which 
separate  the  States,  and  of  compounding  the  American  people 
into  one  common  mass  of  consequence;  when  they  act,  they 
act  in  their  States.  But  the  measures  they  adopt  do  not, 
on  that  account,  cease  to  be  the  measures  of  the  people  them 
selves,  or  become  the  measures  of  the  State  governments. 

"  From  these  conventions  the  Constitution  derives  its  whole 
authority.  The  government  proceeds  directly  from  the  peo^ 
pie;  is  'ordained  and  established  '  in  the  name  of  the  people; 
and  is  declared  to  be  ordained  *  in  order  to  form  a  more  perfect 
union,  establish  justice,  ensure  domestic  tranquillity,  and  secure 
the  blessings  of  liberty  to  them  selves  and  to  their  posterity.'* 
The  assent  of  the  States,  in  their  sovereign  capacity  is  implied 
in  calling  the  Convention,  and  thus  submitting  that  instrument 
to  the  people.  But  the  people  were  at  perfect  liberty  to  accept 
or  reject  it ;  and  their  act  was  final.  It  required  not  the  affirm 
ance,  and  could  not  be  negatived,  by  the  State  governments. 
The  constitution  as  thus  adopted  was  of  complete  obligation, 
and  bound  the  State  sovereignties. 

"  It  has  been  said,  that  the  people  had  already  surrendered 
all  their  powers  to  the  State  sovereignties,  and  had  nothing 
more  to  give.  But,  surely,  the  question  whether  they  may 
resume  and  modify  the  powers  granted  to  government  does 
not  remain  to  be  settled  in  this  country.  Much  more  might 
the  legitimacy  of  the  general  government  be  doubted  had  it 
been  created  by  the  States.  The  powers  delegated  to  the  State 
sovereignties  are  to  be  exercised  by  themselves  and  not  by  a 
distinct  and  independent  sovereignty  created  by  themselves. 
For  the  formation  of  a  league,  such  as  was  the  confederation, 
the  State  sovereignties  were  certainly  competent.  But  when, 
'  in  order  to  form  a  more  perfect  union,'  it  was  deemed  neces 
sary  to  change  this  alliance  into  an  effective  government,  pos 
sessing  great  and  sovereign  powers,  and  acting  directly  on  the 
people,  the  necessity  of  referring  it  to  the  people,  and  of  deriv 
ing  its  powers  directly  from  them,  was  felt  and  acknowledged 
by  all." 

INDEPENDENCE  OF  JUDICIARY 

At  the  Virginia  Constitutional  Convention,  John  Marshall 
said : 


284  THE  POLITICAL  AND  ECONOMIC 

power  to  borrow  money  to  the  credit  of  the  United  States,  and 
consequently  to  be  repugnant  to  the  Constitution." 


TAXING  UNITED  STATES  BANK 

The  basic  principles  upon  which  the  doctrine  of  Federal  tax 
ation  rests  were  laid  down  by  Chief  Justice  Marshall  in  a  few 
early  decisions  on  this  subject.  These  early  cases  decided  by 
the  Supreme  Court  have  controlled  very  many  of  the  later  cases 
that  have  come  up  on  this  subject,  for  the  principles  there  estab 
lished  had  great  weight.  The  first  great  case  of  this  kind  was 
that  of  McCulloch  v.  Maryland,8  which  arose  in  the  following 
manner : 

In  1816,  an  act  was  passed  by  Congress,  "  To  incorporate  the 
subscribers  of  the  Bank  of  the  United  States."  The  bank  was 
subsequently  established  in  Philadelphia,  and  a  branch  thereof 
was  also  established  in  Baltimore.  In  the  1818  A.  D.,  the 
General  Assembly  of  Maryland  passed  an  act  "  To  impose 
a  tax  on  all  banks,  or  branches  thereof  in  the  State  of  Maryland 
not  chartered  by  the  Legislature  of  that  State."  In  passing 
this  act  Maryland  laid  a  heavy  tax  on  the  circulating  notes  of 
the  branch  bank  of  the  United  States  which  was  located  in  the 
city  of  Baltimore.  The  bank  naturally  having  refused  pay 
ment  of  the  taxes,  suit  was  brought  to  recover  them  and  the 
action  of  course  was  sustained  in  all  the  courts  of  Maryland. 
The  case  was  taken  to  the  Supreme  Court  of  the  United  States 
thereupon,  where  the  best  legal  talent  of  the  land  argued  on 
the  case.  Chief  Justice  Marshall  rendered  the  opinion  of  the 
Court  which  is  one  of  the  most  comprehensive  and  profound 
he  ever  delivered. 

In  this  case  there  were  involved  two  great  questions,  of 
which  the  first  was  the  power  of  Congress  to  charter  a  bank. 
After  a  most  thorough  exposition  of  the  authority  of  Congress 
under  the  implied  powers  of  the  Constitution  it  was  held  that 
Congress  had  the  power  to  incorporate  a  bank  on  the  ground 
that  it  was  one  of  the  necessary  agencies  to  carry  out  the  pur 
poses  of  the  Government.  The  second  question  was  this;  could 
the  legislature  of  Maryland  pass  a  law  taxing  the  branch  of  a 
bank  located  within  that  State  without  violating  the  Federal 
Constitution?  This  part  of  the  decision  is  the  one  most  vital, 
8  4  Wheaton,  316. 


DOCTRINES  OF  JOHN  MARSHALL          285 

and  began  by  saying :  "  That  the  power  of  taxation  is  one  of 
vital  importance ;  that  it  is  retained  by  the  States ;  that  it  is  not 
abridged  by  the  grant  of  a  similar  power  to  the  government  of 
the  Union;  that  it  is  to  be  concurrently  exercised  by  the  two 
governments;  are  truths  which  have  never  been  denied.  .  .  . 
"  The  sovereignty  of  a  State  extends  to  everything  which 
exists  by  its  own  authority,  or  is  introduced  by  its  permission ; 
but  does  it  extend  to  those  means  which  are  employed  by  Con 
gress  to  carry  into  execution  power  conferred  on  that  body  by 
the  people  of  the  United  States?  We  think  it  demonstrable 
that  it  does  not.  Those  powers  are  not  given  by  the  people  of 
a  single  State.  They  are  given  by  the  people  of  the  United 
States,  to  a  government  whose  laws,  made  in  pursuance  of  the 
Constitution,  are  declared  to  be  supreme.  Consequently,  thej 
people  of  a  single  State  can  not  confer  a  sovereignty  which  will] 
extend  over  them.  If  we  measure  the  power  of  taxation  re-1 
siding  in  a  State,  by  the  extent  of  sovereignty  which  the  people 
of  a  single  State  possess,  and  can  confer  on  its  government,  we 
have  an  intelligible  standard  applicable  to  every  case  to  which 
the  power  may  be  applied.  We  have  a  principle  which  leaves 
the  power  of  taxing  the  people  and  property  of  a  State  unim 
paired  ;  which  leaves  to  a  State  the  command  of  all  its  resources, 
and  which  places  beyond  its  reach,  all  those  powers  which  are 
conferred  by  the  people  of  the  United  States  on  the  government 
of  the  Union,  and  all  those  means  which  are  given  for  the  pur 
pose  of  carrying  those  powers  into  execution.  We  have  a 
principle  which  is  safe  for  the  States,  and  safe  for  the  Union. 
We  are  relieved,  as  we  ought  to  be,  from  clashing  sovereignty ; 
from  interfering  powers ;  from  a  repugnancy  between  a  right 
in  one  government  to  pull  down  what  there  is  an  acknowl 
edged  right  in  another  to  build  up ;  from  the  incompatibility  of 
a  right  in  one  government  to  destroy  what  there  is  a  right  in 
another  to  preserve.  We  are  not  driven  to  the  perplexing 
inquiry,  so  unfit  for  the  judicial  department,  what  degree  of 
taxation  is  the  legitimate  use,  and  what  degree  may  amount  to 
the  abuse  of  the  power.  The  attempt  to  use  it  on  the  means 
employed  by  the  government  of  the  Union,  in  pursuance  of  the 
Constitution,  is  itself  an  abuse,  because  it  is  the  usurpation  of 
a  power  which  the  people  of  a  single  State  can  not  give.  We 
find,  then,  on  just  theory,  a  total  failure  of  this  original  right 
to  tax  the  means  employed  by  the  government  of  the  Union, 


282  THE  POLITICAL  AND  ECONOMIC 

'  The  judicial  department  comes  home  in  its  effects  to  every 

man's  fireside ;  it  passes  on  his  property,  his  reputation,  his  life, 

his  all.     Is  it  not  to  the  last  degree  important  that  he  should  be 

rendered  perfectly  and  completely  independent,  with  nothing  to 

control   him  but   God   and   his   conscience?     I   have   always 

thought   from  my  earliest  youth  till  now,   that  the  greatest 

|*  scourge  an  angry  Heaven  ever  inflicted  upon  an  ungrateful  and 

l    I  a.  sinning  people  was  an  ignorant,  a  corrupt,  or  a  dependent 

I    judiciary." 

SUITS  AGAINST  STATES 

At  the  Virginia  Convention  3  called  to  ratify  the  Constitu 
tion  John  Marshall  said : 

"  With  respect  to  disputes  between  a  State  and  the  citizens 
of  another  State,  its  jurisdiction  has  been  decried  with  unusual 
vehemence.  I  hope  that  no  gentleman  will  think  that  A  State 
/  will  be  called  at  the  bar  of  a  federal  court.  ...  It  is  not  ra- 
/  tional  to  suppose  that  the  sovereign  power  should  be  dragged 
before  a  court.  The  intent  is  to  enable  States  to  recover  claims 
of  individuals  residing  in  other  States.  .  .  .  But,  say  they, 
there  will  be  partiality  in  it  if  a  State  cannot  be  defendant  —  if 
an  individual  cannot  proceed  to  obtain  judgment  against  a 
State,  though  he  may  be  sued  by  a  State.  It  is  necessary  to 
be  so,  and  cannot  be  avoided.  I  see  a  difficulty  in  making  a 
State  defendant  which  does  not  prevent  its  being  plaintiff." 

IMPLIED  POWERS 

In  the  case  of  United  States  v.  Harris 4  we  read  that 
"  Proper  respect  for  a  co-ordinate  branch  of  the  government 
requires  the  courts  of  the  United  States  to  give  effect  to  the 
presumption  that  Congress  will  pass  no  act  not  within  its  con 
stitutional  power.  This  presumption  should  prevail  unless  the 
lack  of  constitutional  authority  to  pass  an  act  in  question  is 
clearly  demonstrated.  While  conceding  this,  it  must,  neverthe 
less,  be  stated  that  the  government  of  the  United  States  is  one 
of  delegated,  limited  and  enumerated  powers.  Therefore  every 
valid  act  of  Congress  must  find  in  the  Constitution  some  war 
rant  for  its  passage." 

3  3  "  Elliot's  Debates,"  2d  edition,  555. 
*  106  U.  S,  635 


DOCTRINES  OF  JOHN  MARSHALL          283 

There  is  nothing  to  be  found  in  the  Constitution  which  ex 
cludes  the  exercise  of  incidental  or  implied  powers.     In  McCul-   , 
loch  v.  Maryland  5  Chief  Justice  Marshall  said,  "  If  the  end  be  /' 
legitimate  and  within  the  scope  of  the  Constitution,  all  the  I 
means  which  are  appropriate,  which  are  plainly  adapted  to  |\ 
that  end,  and  which  are  not  prohibited,  may  be  constitutionally  \\j 
employed  to  carry  it  into  effect." 

DIRECT  TAXES 

Scores  of  eminent  men  expressed  their  views  on  this  subject, 
but  it  seems  no  one  pretended  to  explain  fully  what  the  ex 
pression,  "  Direct  Taxes,"  as  used  in  the  Constitution,  meant. 
John  Marshall  who  was  a  member  of  the  Constitutional  Con 
vention  expressed  his  views  more  clearly  on  the  matter  than 
any  other  man.  He  says : 

"  The  objects  of  direct  taxes  are  well  understood ;  they  are 
but  few ;  what  are  they?  Lands,  slaves,  stock  of  all  kinds,  and 
a  few  other  articles  of  domestic  property." 

POWER  OF  THE  STATES  TO  DESTROY  THE  GOVERNMENT 

In  regard  to  the  power  of  the  States,  Chief  Justice  Marshall, 
in  the  case  of  Cohens  v.  Virginia,  gives  the  following  opinion: 

'  The  States  can  put  an  end  to  the  Government  by  refusing 
to  act.  They  have  only  not  to  elect  Senators,  and  it  expires 
without  a  struggle."  G 

TAX  ON  INCOME  FROM  BONDS 

In  Western  v.  Charleston,7  Chief  Justice  Marshall  said: 
"  The  right  to  tax  the  contract  to  any  extent,  when  made,  must 
operate  upon  the  power  to  borrow  before  it  is  exercised,  and 
have  a  sensible  influence  on  the  contract.  The  extent  of  this 
influence  depends  on  the  will  of  a  distinct  government.  To 
any  extent,  however  inconsiderable,  it  is  a  burthen  on  the  op 
erations  of  government.  It  may  be  carried  to  an  extent  which 
shall  arrest  them  entirely.  .  .  .  The  tax  on  government  stock 
is  thought  by  this  court  to  be  a  tax  on  the  contract,  a  tax  on  the 

5  4  Wheaton,  421. 

6  Wheaton,  391. 

7  2  Peters,  449,  468. 


286  THE  POLITICAL  AND  ECONOMIC 

for  the  execution  of  its  powers.  The  right  never  existed,  and 
the  question  whether  it  has  been  surrendered,  can  not  arise. 

"  That  the  power  to  tax  involves  the  power  to  destroy ;  that 
the  power  to  destroy  may  defeat  and  render  useless  the  power 
to  create ;  that  there  is  a  plain  repugnance,  in  conferring  on  one 
government  a  power  to  control  the  constitutional  measures  of 
another,  which  other,  with  respect  to  those  very  measures,  is 
declared  to  be  supreme  over  that  which  exerts  the  control,  are 
propositions  not  to  be  denied.  .  .  . 

"  If  we  apply  the  principle  for  which  the  State  of  Maryland 
contends,  to  the  Constitution  generally,  we  shall  find  it  capable 
of  changing  totally  the  character  of  that  instrument.  We  shall 
find  it  capable  of  arresting  all  the  measures  of  the  government, 
and  of  prostrating  it  at  the  foot  of  the  States.  The  American 
people  have  declared  their  Constitution,  and  the  laws  made  in 
pursuance  thereof,  to  be  supreme;  but  this  principle  would 
transfer  the  supremacy,  in  fact,  to  the  States. 

"  If  the  States  may  tax  one  instrument,  employed  by  the  gov 
ernment  in  th£  execution  of  its  powers,  they  may  tax  any  and 
every  other  instrument.  They  may  tax  the  mail;  they  may 
tax  the  mint;  they  may  tax  patent  rights;  they  may  tax  the 
papers  of  the  custom  house ;  they  may  tax  judicial  process ;  they 
may  tax  all  the  means  employed  by  the  government,  to  an  ex 
cess  which  would  defeat  all  the  ends  of  government.  This  was 
not  intended  by  the  American  people.  They  did  not  design  to 
make  their  government  dependent  on  the  States." 

The  court  reached  the  conclusion  that  the  States  have  no 
power,  by  taxation  or  otherwise,  to  retard,  impede,  burden,  or 
in  any  way  control  the  operations  of  the  constitutional  laws 
enacted  by  Congress  to  carry  into  execution  the  powers  vested 
in  the  general  government.  The  court  also  held  :  ( i ) ,  That 
the  States  were  not  deprived  of  resources  which  they  originally 
possessed.  (2),  That  they  could  lay  a  tax  upon  the  real 
property  of  the  bank,  in  common  with  other  real  property 
within  the  State.  (3),  They  could  also  impose  a  tax  on  the 
interest  which  the  citizens  of  Maryland  might  hold  in  the  bank, 
in  common  with  other  property  of  the  same  description 
throughout  the  State.  The  pivotal  question  decided  in  this 
branch  of  the  case  was,  that  a  State  has  no  power  to  tax  an 
agency  of  the  general  government,  for,  said  Marshall,  "the 
power  to  tax  involves  the  power  to  destroy,"  an  expression 


DOCTRINES  OF  JOHN  MARSHALL  287 

which  has  since  become  a  classic  in  constitutional  literature. 
This  opinion  established  the  constitutional  principle  that  the 
Government  of  the  United  States  is  supreme  in  power,  and  in 
dependent  of  the  States,  in  all  matters  relating  to  its  existence, 
and  that  the  agencies  necessary  for  its  perpetuity  are  beyond 
State  control,  or  the  power  of  State  taxation.  Coming  as  it  did 
at  an  early  date  in  our  history,  from  a  court  having  a  thorough, 
and  much  personal  knowledge  concerning  the  formation  and 
adoption  of  the  Constitution,  and  of  the  hopes,  purposes,  and 
intentions  of  its  framers,  this  opinion  lifted  the  authority  of  the 
general  government  from  the  uncertainty  which  had  sur 
rounded  it  before  this,  and  placed  it  upon  the  solid  bed-rock  o>f 
the  Constitution.  Here  the  strength  and  supremacy  of  the 
Federal  Government  began,  for  this  was  the  first  great  judicial 
and  constitutional  sign-board,  leading  the  way  for  the  progress 
of  the  Republic.  The  great  national  benefit  and  influence 
have  never  been  surpassed  by  any  decision  of  any  court. 

A  short  time  later,  in  the  case  of  Osborn  v.  The  United 
States  Bank,9  a  similar  question  was  considered,  the  General 
Assembly  of  Ohio  having  passed  an  act  very  similar  to  that  of 
Maryland  in  regard  to  the  taxation  of  a  branch  of  the  United 
States  Bank.  In  this  case  Marshall  also  delivered  the  opinion, 
and  in  it  the  opinion  in  McCulloch  v.  Maryland,  on  the  subject 
of  the  taxation  of  a  government  agency  by  a  State,  was  re 
viewed  and  affirmed,  the  court  expressly  holding  that  a  State 
law  imposing  a  tax  on  one  of  the  branches  of  a  bank  of  the 
United  States  is  unconstitutional. 

Just  five  years  after  the  decision  in  Osborn  v.  United  States 
bank,  another  very  important  question  came  up  before  the 
Supreme  Court  in  the  case  of  Weston  v.  The  City  Council  of 
Charleston,10  which  also  grew  out  of  the  establishment  of  the 
United  States  Bank,  and  again  Justice  Marshall  delivered  the 
opinion  of  the  majority  of  the  court,  for  two  justices  dissented. 
The  case  came  to  the  Supreme  Court  from  the  State  of  South 
Carolina,  where  the  City  Council  of  Charleston  had  passed  an 
ordinance  under  which  the  stock  of  the  United  States  Bank  was 
made  subject  to  taxation.  The  owners  of  the  stock  obtained 
a  prohibition  against  levying  tax  in  the  lower  court  of  the  State, 
but  this  wras  reversed  by  the  higher  court  and  the  case  conse- 

9  9  Wheaton,  738. 

10  2  Peters,  449. 


288  THE  POLITICAL  AND  ECONOMIC 

quently  went  to  the  Supreme  Court  of  the  United  States.  The 
main  question  was,  could  stock  of  the  United  States  Bank,  held 
by  an  individual,  be  taxed  under  authority  of  the  State  ?  In  the 
course  of  his  opinion  Marshall  said : 

"  If  the  right  to  impose  the  tax  exists,  it  is  a  right  which  in 
its  nature  acknowledges  no  limits.  It  may  be  carried  to  any 
extent  within  the  jurisdiction  of  the  State  or  corporation  which 
imposes  it,  which  the  will  of  each  State  and  corporation  may 
prescribe.  A  power  which  is  given  by  the  whole  American 
people  for  their  common  good,  which  is  to  be  exercised  at  the 
most  critical  periods,  for  the  most  important  purposes,  on  the 
free  exercise  of  which  the  interests  certainly,  perhaps  the  liberty 
of  the  whole  may  depend,  may  be  burdened,  impeded,  if  not 
arrested,  by  any  of  the  organized  parts  of  the  confederacy. 
In  a  society  formed  like  ours,  with  one  supreme  government 
for  national  purposes,  and  numerous  State  governments  for 
other  purposes,  in  many  respects  independent,  and  in  the  un 
controlled  exercise  of  many  important  powers,  occasional  inter 
ferences  ought  not  to  surprise  us.  The  power  of  taxation  is 
one  of  the  most  essential  to  a  State,  and  one  of  the 
most  extensive  in  its  operation.  The  attempt  to  maintain 
a  rule  which  shall  limit  its  exercise,  is  undoubtedly  among 
the  most  delicate  and  difficult  duties  which  can  devolve  on 
those  whose  province  it  is  to  expound  the  supreme  law  of 
the  land  in  its  application  to  the  cases  of  individuals.  This 
duty  has  more  than  once  devolved  on  this  court.  In  the  per 
formance  of  it,  we  have  considered  it  as  a  necessary  conse 
quence,  from  the  supremacy  of  the  government  of  the  whole, 
that  its  action,  in  the  exercise  of  its  legitimate  powers,  should 
be  free  and  unembarassed  by  any  conflicting  powers  in  the 
possession  of  its  parts ;  that  the  powers  of  a  State  can  not  right 
fully  be  so  exercised  as  to  impede  and  obstruct  the  free  course 
of  those  measures  which  the  government  of  the  States  united 
may  rightfully  adopt/' 

"  It  is  not  the  want  of  original  power  in  an  independent 
sovereign  State,  to  prohibit  loans  to  a  foreign  government, 
which  restrains  the  legislature  from  direct  opposition  to  those 
made  by  the  United  States.  The  restraint  is  imposed  by  our 
Constitution.  The  American  people  have  conferred  the  power 
of  borrowing  money  on  their  government,  and,  by  making  that 
government  supreme,  have  shielded  its  action,  in  the  exercise  of 


f>  DOCTRINES  OF  JOHN  MARSHALL          289 

this  power,  from  the  action  of  the  local  governments.  The 
grant  of  the  power  is  incompatible  with  a  restraining  or  con 
trolling  power,  and  the  declaration  of  supremacy  is  a  declara 
tion  that  no  such  restraining  or  controlling  power  shall  be 
exercised.  The  right  to  tax  the  contract  to  any  extent,  when 
made,  must  operate  upon  the  power  to  borrow  before  it  is 
exercised,  and  have  a  sensible  influence  on  the  contract.  The 
extent  of  this  influence  depends  on  the  will  of  a  distinct  govern 
ment.  To  any  extent,  however  inconsiderable,  it  is  a  burden 
on  the  operations  of  government.  It  may  be  carried  to  an  ex 
tent  which  shall  arrest  them  entirely." 

The  court's  conclusion  was  that  a  tax  on  Government  stock 
is  a  tax  on  the  contract,  on  the  power  to  borrow  money  on  the 
credit  of  the  United  States,  and,  therefore,  repugnant  to  the 
Constitution. 

We  know  that  the  power  to  levy  taxes  and  collect  them  is 
inherent  in  every  sovereignty  and  it  is  doubtful  if  it  was  neces 
sary  that  the  Constitution  of  the  United  States  should  have 
expressly  conferred  this  power  upon  Congress.  It  would  have 
had  it  independent  of  any  Constitutional  authority. 

POWER  OF  CONGRESS  TO  CHARTER  BANKS 

In  his  report  on  the  establishment  of  a  National  Bank,  Mr. 
Hamilton  clearly  demonstrated  that  the  power  existed  in  Con 
gress  to  establish  any  agency  necessary  for  carrying  on  the 
Government.  Chief  Justice  Marshall  crystallized  this  doctrine 
into  law  in  his  opinion  which  he  delivered  in  the  significant 
case  of  McCulloch  v.  Maryland,11  in  which  he  said: 

"  Among  the  enumerated  powers,  we  do  not  find  that  of 
establishing  a  bank  or  creating  a  corporation.  But  there  is  no 
phrase  in  the  instrument  which  like  the  Articles  of  Confed 
eration,  excludes  incidental  or  implied  powers ;  and  which 
requires  that  everything  granted  shall  be  expressly  and 
minutely  described.  Even  the  loth  amendment  which  was 
framed  for  the  purpose  of  quieting  excessive  jealousies  which 
had  been  excited,  omits  the  word  '  expressly/  and  declares 
only  that  the  powers  '  not  delegated  to  the  United  States,  nor 
prohibited  to  the  States,  are  reserved  to  the  States  or  to  the 
people/  thus  leaving  the  question,  whether  the  particular  power 

11  9  Wheaton,  406, 


290  THE  POLITICAL  AND  ECONOMIC 

which  may  become  the  subject  of  contest  has  been  delegated  to 
the  one  government,  or  prohibited  to  the  other,  to  depend  on  a 
fair  construction  of  the  whole  instrument.  The  men  who 
drew  and  adopted  this  amendment  had  experienced  the  em- 
barassments  resulting  from  the  insertion  of  this  word  in  the 
Articles  of  Confederation,  and  probably  omitted  it  to  avoid 
those  embarassments." 

Again  (p.  421.)  :  "  If  we  look  to  the  origin  of  corporations, 
to  the  manner  in  which  they  have  been  framed  in  that  govern 
ment  from  which  we  have  derived  most  of  our  legal  principles 
and  ideas,  or  to  the  uses  to  which  they  have  been  applied,  we 
find  no  reason  to  suppose  that  a  constitution,  omitting,  and 
wisely  omitting,  to  enumerate  all  the  means  for  carrying  into 
execution  the  great  powers  vested  in  government,  ought  to  have 
specified  this.  Had  it  been  intended  to  grant  this  power  as  one 
which  should  be  distinct  and  independent,  to  be  exercised  in 
any  case  whatever,  it  would  have  found  a  place  among  the 
enumerated  powers  of  the  government.  But  being  considered 
merely  as  a  means,  to  be  employed  only  for  the  purpose  of 
carrying  into  execution  the  given  powers,  there  could  be  no 
motive  for  particularly  mentioning  it." 

Ji      ORIGINAL  PACKAGES 

Judson,  in  his  "  Interstate  Commerce,"  12  says  that  the  "  orig 
inal  package  rule  "  was  first  announced  in  1827  in  Marshall's 
opinion  in  Brown  v.  Maryland  13  which  was  a  case  where  a 
statute  passed  by  the  Legislature  of  Maryland  require  import 
ers  of  foreign  articles  by  the  bale  or  package  and  persons 
selling  such  articles  in  that  way,  to  obtain  a  license  to  do  so, 
which  statute  was  declared  unconstitutional  by  Chief  Justice 
Marshall,  who  in  discussing  the  question,  admitted  the  diffi 
culty  of  laying  down  any  fixed  rule  on  the  subject  as  to  when 
the  statute  applied  to  imported  articles.  He  said : 

"  It  is  sufficient  for  the  present  to  say,  generally,  that  when 
the  importer  has  so  acted  upon  the  thing  imported,  that  it  has 
become  incorporated  and  mixed  up  with  the  mass  of  property  in 
the  country,  it  has,  perhaps,  lost  its  distinctive  character  as  an 
import,  and  has  become  subject  to  the  taxing  power  of  the 
State ;  but  while  remaining  the  property  of  the  importer  in  his 

12  Judson  on  "  Interstate  Commerce,"  sec.  16. 
is  12  Wheaton,  441-442. 


DOCTRINES  OF  JOHN  MARSHALL          291 

warehouse  in  the  original  form  or  package  in  which  it  was 
imported,  a  tax  upon  it  is  too  plainly  a  duty  on  imports  to 
escape  the  prohibition  in  the  Constitution."  14  Hence  the  doc 
trine  of  original  packages.  There  is  no  statutory  definition  of 
the  term  original  package  and  the  courts  have  not  given  any 
fixed  definition  to  the  term,  but  as  each  case  arose  have  declared 
whether  the  article  involved  was  or  was  not  an  original  pack 
age.  In  May  v.  New  Orleans,15  it  was  held,16  that  where 
goods  were  imported  from  foreign  countries  and  were  put  up 
for  sale  in  packages  and  a  number  of  such  packages  were 
enclosed  in  boxes  or  cases  for  purposes  of  transportation,  the 
box  or  case  in  which  the  packages  were  shipped  and  not  the 
packages  themselves  constituted  the  original  package.  In  this 
case  4  of  the  justices  dissented  from  the  judgment  of  the 
court. 

Mr.  Justice  Brown  in  delivering  the  opinion  of  the  Court  in 
Austin  v.  Tennessee  17  referred  to  Brown  v.  Maryland,  the  de 
cision  of  Chief  Justice  Marshall,  as  the  source  of  the  doctrine 
of  original  packages,  intimated  that  it  was  doubtful  whether 
the  decision  would  have  been  the  same  if  the  original  package 
in  that  case  had  been  small  instead  of  large  in  size,  for  at  that 
time  it  was  customary  to  import  goods  from  foreign  countries 
in  very  large  packages.  Mr.  Justice  Brown  in  this  case  said : 18 

"  It  is  safe  to,  assume  that  it  did  not  occur  to  the  Chief 
Justice  19  that,  by  a  skillful  alteration  of  the  size  of  the  pack 
ages,  the  decision  might  be  used  to  force  upon  a  reluctant  people 
the  use  of  articles  denounced  as  noxious  by  the  legislatures  of 
the  several  States."  In  Cook  v.  Marshall,20  Mr.  Justice  Brown 
referred  to  Chief  Justice  Marshall,  and  summed  up  the  doctrine 
as  follows: 

"  The  term  '  original  package  '  is  not  defined  by  any  statute, 
and  is  simply  a  convenient  form  of  expression  adopted  by  Chief 
Justice  Marshall  in  Brown  v.  Maryland,  to  indicate  that  a 
license  tax  could  not  be  exacted  of  an  importer  of  goods  from  a 
foreign  country  who  disposes  of  such  goods  in  the  form  in 

14  12  Wheaton,  441-2. 

15  178  U.  S.,  496. 

16  508,  509- 

i'  179  U.  S.,  343. 
is  179  U.  S.,  351- 

19  Marshall. 

20  196  U.  S.,  270. 


292  THE  POLITICAL  AND  ECONOMIC 

which  they  were  imported.  It  is  not  denied  that  in  the 
changed  and  changing  conditions  of  commerce  between  the 
States,  packages  in  which  shipments  may  be  made  from  one 
State  to  another  may  be  smaller  than  those  *  bales,  hogsheads, 
barrels  or  tierces/  to  which  the  term  was  originally  applied  by 
Chief  Justice  Marshall,  but  whatever  the  form  or  size  employed 
there  must  be  a  recognition  of  the  fact  that  the  transaction  is  a 
bona  fide  one,  and  that  the  usual  methods  of  interstate  shipment 
have  not  been  departed  from  for  the  purpose  of  evading  the 
police  laws  of  the  States."  It  is  held  by  the  best  authorities, 
11  that  an  original  package  is  a  package  delivered  by  the  im 
porter  to  the  carrier  at  the  initial  place  of  shipment,  in  the 
exact  condition  in  which  it  was  shipped."  21 

STATE  INSPECTION  LAWS 


Chief  Justice  Marshall  in  the  case  of  ^Gibbon^jv^  Ogden,22 
said  :  '  The  object  of  inspection  laws  is  to  improve  the  quality 
of  articles  produced  by  the  labor  of  a  country;  to  fit  them  for 
exportation  ;  or  it  may  be,  for  domestic  use.  They  act  upon  the 
subject  before  it  becomes  an  article  of  foreign  commerce,  or  of 
commerce  among  the  States,  and  prepare  it  for  that  purpose. 
They  form  a  portion  of  that  immense  mass  of  legislation, 
which  embraces  everything  within  the  territory  of  a  State,  not 
surrendered  to  a  general  government,  all  which  can  be  most 
advantageously  exercised  by  the  States  themselves.  Inspection 
laws,  quarantine  laws,  health  laws  of  every  description,  as  well 
as  laws  for  regulating  the  internal  commerce  of  a  State,  and 
those  which  respect  turnpike  roads,  ferries,  etc.,  are  component 
parts  of  this  mass. 

"  No  direct  general  power  over  these  objects  is  granted  to 
Congress,  and  consequently,  they  remain  subject  to  State  legis 
lation.  If  the  legislative  power  of  the  Union  can  reach  them, 
it  must  be  for  national  purposes  ;  it  must  be  where  the  power  is 
expressly  given  for  a  special  purpose,  or  is  clearly  incidental 
to  some  power  which  is  expressly  given.  It  is  obvious  that  the 
Government  of  the  Union,  in  the  exercise  of  its  express  powers, 
that,  for  example,  of  regulating  commerce  with  foreign  nations 
and  among  the  States,  may  use  means  that  may  also  be  em 
ployed  by  a  State,  in  the  exercise  of  its  acknowledged  powers; 

21  27  Court  of  Claims,  278,  282. 

22  Pp.  12-13. 


DOCTRINES  OF  JOHN  MARSHALL          293 

that,  for  example,  of  regulating  commerce  within  the  State. 
If  Congress  license  vessels  to  sail  from  one  port  to  another  in 
the  same  State,  the  act  is  supposed  to  be,  necessarily,  incidental 
to  the  power  expressly  granted  to  Congress,  and  implies  no 
claim  of  a  direct  power  to  regulate  the  purely  internal  com 
merce  of  a  State,  or  to  act  directly  on  its  system  of  police. 
So  if  a  State,  in  passing  laws  on  subjects  acknowledged  to  be 
within  its  control,  and  with  a  view  to  those  subjects,  shall  adopt 
a  measure  of  the  same  character  with  one  which  Congress  may 
adopt,  it  does  not  derive  its  authority  from  the  particular 
power  which  has  been  granted,  but  from  some  other  which 
remains  within  the  State,  and  may  be  executed  by  the  same 
means.  All  experience  shows  that  the  same  measures,  or 
measures  scarcely  distinguishable  from  each  other,  may  flow 
from  distinct  powers ;  but  this  does  not  prove  that  the  powers 
themselves  are  identical.  Although  the  means  used  in  their 
execution  may  sometimes  approach  each  other  so  nearly  as  to 
be  confounded,  there  are  other  situations  in  which  they  are 
sufficiently  distinct  to  establish  their  individuality."  23 

QUARANTINE  LAWS 

Congress  recognized  as  early  as  1799,  that  the  States  may 
pass  laws  which  relate  to  quarantine  and  the  general  preserva 
tion  of  health.  At  that  time  acts  were  passed  which  author 
ized  the  President  to  direct  the  revenue  officers  to  aid  in  the 
execution  of  these  laws.24  In  Gibbons  v.  Ogden,25  Chief  Justice 
Marshall  said,  The  acts  of  Congress  passed  in  1796  and  1799, 
empowering  and  directing  the  officers  of  the  General  Govern 
ment  to  conform  to,  and  assist  in  the  execution  of  quarantine 
and  health  laws  of  a  State  proceed,  it  is  said,  upon  the  idea 
that  these  laws  are  constitutional.  It  is  undoubtedly  true, 
that  they  do  proceed  upon  that  idea;  and  the  constitutionality 
of  such  laws  has  never,  so  far  as  we  are  informed,  been  denied. 
They  are  treated  as  quarantine  and  health  laws,  and  are  so 
denominated  in  the  acts  of  Congress  and  are  considered  as 
flowing  from  the  acknowledged  powers  of  the  States,  to  pro 
vide  for  the  health  of  the  citizens.26 

23  9  Wheaton,  i. 

24  i  U.  S.  Statutes  at  Large,  474. 

25  P.  205. 

26  9  Wheaton,  204. 


294  THE  POLITICAL  AND  ECONOMIC 

The  States  can  pass  quarantine  laws  for  the  protection 
of  health  and  may  require  the  payment  of  small  fees  to  dis 
charge  the*expense  of  such  examinations  as  the  States  think 


is  necessary.27 


NATURALIZATION 


Chief  Justice  Marshall  in  speaking  of  the  rights  of  a  natural 
ized  citizen,  in  Qsborn_v.  United  States  Bank  28  says : 

"  He  becomes  a  member  of  the  society,  possessing  all  the 
rights  of  a  native  citizen,  and  standing,  in  the  view  of  the 
Constitution,  on  the  footing  of  a  native.  The  Constitution 
does  not  authorize  Congress  to  enlarge  or  abridge  those  rights. 
The  simple  power  of  the  National  legislature  is,  to  prescribe 
a  uniform  rule  of  naturalization,  and  the  exercise  of  this 
power,  exhausts  it,  so  far  as  respects  the  individual."  29  The 
above  is  erroneous.  We  know  that  a  naturalized  citizen  does 
not  "  possess  all  the  rights  of  a  native  citizen  "  and  the  Con 
stitution  does  not  put  a  naturalized  citizen  on  the  "  footing 
of  a  native."  There  are  certain  privileges  which  belong  to  a 
native  citizen,  prescribed  by  the  Constitution,  which  can  not 
be  conferred  on  a  naturalized  citizen  and  they  are  among  the 
most  esteemed  privileges  which  a  native  citizen  has,  among 
them  is  the  right  of  eligibility  to  the  presidency.  A  natural 
ized  citizen  cannot  be  President,  or  Vice-President.30  Neither 
can  a  naturalized  citizen  be  a  member  of  Congress  until  he 
has  resided  in  this  country  a  specified  length  of  time.  A 
little  farther  on  Chief  Justice  Marshall  says  in  speaking  of  a 
naturalized  citizen :  "  He  is  distinguishable  in  nothing  from 
a  native  citizen,  except  so  far  as  the  Constitution  makes  the 
distinction.  The  law  makes  none."  31 

HABEAS  CORPUS 
The  privilege  of  the  writ  shall  not  be  suspended. 

There  has  been  much  controversy  and  great  difference  of 
opinion  among  jurists  and  law  writers  because  the  Consti 
tution  fails  to  say  who  shall  have  the  power  to  suspend  the 

27ii8  U.  S.,  455- 

28  9  Wheaton,  739. 

29  P.  827. 

30  Const.,  art.  n,  sec.  4. 
81  9  Wheaton,  828. 


- 
DOCTRINES  OF  JOHN  MARSHALL          295 

writ   of   habeas   corpus.     In   the   early  case   of   Bollman   v. 
Swartout,32  Chief  Justice  Marshall  said: 

"  If  at  any  time  the  public  safety  require  the  suspension 
of  the  writ  of  habeas  corpus,  it  is  for  the  legislature  to  say 
so.  That  question  depends  on  political  considerations,  of 
which  the  legislature  is  to  decide." 

Some  say  that  Marshall's  opinion  on  this  subject  was  obiter/ 
dictum,  because  the  question  was  not  necessarily  or  fairly^ 
before  the  court. 

BILLS  OF  ATTAINDER        U- 

IrrFleldieiLv,  Peck,33  Chief  Justice  Marshall  said: 
"  A  bill  of  attainder  may  affect  the  life  of  an  individual,  or    | 
may  confiscate  his  property,  or  may  do  both." 

"  A  bill  of  attainder  is  a  legislative  act  which  inflicts  punish 
ment  without  a  judicial  trial.  If  the  punishment  be  less  than 
death,  the  act  is  termed  a  bill  of  pains  and  penalties.  With 
in  the  meaning  of  the  Constitution,  bills  of  attainder  include 
bills  of  pains  and  penalties.  In  these  cases  the  legislative 
body,  in  addition  to  its  legitimate  functions,  exercises  the 
powers  and  office  of  judge;  it  assumes,  in  the  language  of  the 
text  books,  judicial  magistracy;  it  pronounces  upon  the  guilt 
of  the  party,  without  any  of  the  forms  or  safeguards  of  trial ; 
it  determines  the  sufficiency  of  the  proofs  produced,  whether 
conformable  to  the  rules  of  evidence  or  otherwise;  and  it  fixes 
the  degree  of  punishment  in  accordance  with  its  own  notions 
of  the  enormity  of  the  offense.  The  bills  are  generally  directed 
against  individuals  by  name,  but  they  may  be  directed  against 
a  whole  class."  34 

BILLS  OF  CREDIT  OF  STATES 

The  evils  which  produced  the  prohibitory  clause  in  the  Con 
stitution  of  the  United  States,  was  the  practice  of  the  States 
in  making  bills  of  credit,  and  in  some  instances  appraised 
property,  "  a  legal  tender."  35  This  clause  of  the  Constitu 
tion  first  came  before  the  Supreme  Court  of  the  United  States 
in  Craig  v.  Missouri,  the  facts  in  this  case  were  as  follows : 

32  4  Cranch,  101. 

33  6  Cranch,  138. 

34  Cummings  v.  State  of  Mo.,  4  Wallace,  323. 

35  Madison's  Writings,  Vol.  4,  160. 


296  THE  POLITICAL  AND  ECONOMIC 

On  the  27th  of  June,  1821,  the  legislature  of  Missouri,  author 
ized  the  State  to  issue  certificates  of  indebtedness  in  the  fol 
lowing  form :  '  This  certificate  shall  be  receivable  at  the 
treasury,  or  any  of  the  loan  offices  of  the  State  of  Missouri, 
in  the  discharge  of  taxes  or  debts  due  the  State,  for  the  sum 
of  $-  -  with  interest  for  the  same,  at  the  rate  of  two  per 

centum  per  annum  from  this  date,  the  day  of  

182 — ."  The  question  was,  whether  these  certificates  were 
bills  of  credit.  It  was  held  by  the  majority  of  the  court  that 
they  were,  and  consequently  the  State  of  Missouri  could  not 
issue  them.  In  delivering  the  opinion  of  the  majority  Chief 
Justice  Marshall  said : 

"What  is  a  bill  of  credit?  What  did  the  Constitution 
mean  to  forbid?  In  its  enlarged,  and  perhaps  literal  sense, 
the  term,  '  bill  of  credit,'  may  comprehend  any  instrument  by 
which  a  State  engages  to  pay  money  at  a  future  day,  thus  in 
cluding  a  certificate  given  for  money  borrowed.  But  the 
language  of  the  Constitution  itself,  and  the  mischief  to  be  pre 
vented,  which  we  know  from  the  history  of  our  country, 
equally  limit  the  interpretation  of  the  terms.  The  word 
'  emit,'  is  never  employed  in  describing  those  contracts  by 
which  a  State  binds  itself  to  pay  money  at  a  future  day,  for 
services  actually  received,  or  for  money  borrowed  for  present 
use;  nor  are  instruments  executed  for  such  purposes,  in  com 
mon  language,  denominated  '  bills  of  credit.'  To  '  emit  bills  of 
credit '  conveys  to  the  mind  the  idea  of  issuing  paper  intended 
to  circulate  through  the  community  for  its  ordinary  purposes 
as  money,  which  paper  is  redeemable  at  a  future  day.  This 
is  the  sense  in  which  the  terms  have  been  always  understood. 

"  At  a  very  early  period  of  our  colonial  history,  the  at 
tempt  to  supply  the  want  of  the  precious  metals  by  a  paper 
medium,  was  made  to  a  considerable  extent;  and  the  bills 
emitted  for  this  purpose  have  been  frequently  denominated 
bills  of  credit.  During  the  war  of  our  Revolution,  we  were 
driven  to  this  expedient;  and  necessity  compelled  us  to  use  it 
to  a  most  fearful  extent.  The  term  has  acquired  an  appro 
priate  meaning ;  and  '  bills  of  credit '  signify  a  paper  medium, 
intended  to  circulate  between  individuals,  and  between  govern 
ment  and  individuals,  for  the  ordinary  purposes  of  society. 
Such  a  medium  has  been  always  liable  to  considerable  fluctua 
tion.  Its  value  is  continually  changing;  and  these  changes, 


DOCTRINES  OF  JOHN  MARSHALL          297 

often  great  and  sudden,  expose  individuals  to  immense  loss, 
are  the  sources  of  ruinous  speculations,  and  destroy  all  con 
fidence  between  man  and  man.  To  cut  up  this  mischief  by 
the  roots,  a  mischief  which  was  felt  through  the  United  States, 
and  which  deeply  affected  the  interest  and  prosperity  of  all, 
the  people  declared  in  their  Constitution  that  no  State  should 
emit  bills  of  credit.  If  the  prohibition  means  anything,  if  the 
words  are  not  empty  sounds,  it  must  comprehend  the  emission 
of  any  paper  medium  by  a  State  government  for  the  purpose 
of  common  circulation."  36 

OBLIGATION  OF  CONTRACTS 

No  State  shall  pass  a  law  impairing  the  obligation  of  con-   / 
tracts. — This  was  the  conclusion  Chief  Justice  Marshall  came  ' 
to  in  the  first  great  case  on  this  subject,  the  case  of  Eietcher 
\^PeclvL  3T  which  was  decided  in  1809,  twenty  years  after  the 
esTaBllshment  of  the   Government.     The  case  arose  as   fol 
lows: 

Under  an  act  passed  by  the  legislature  of  Georgia  in  1795, 
a  tract  of  land  was  sold  to  the  Georgia  Co.,  which  was  com 
posed  of  individuals.  Peck  conveyed  a  part  of  this  land  to 
Fletcher,  and  in  his  deed  Peck  covenanted  that  the  State  of 
Georgia  had  lawful  possession  of  the  land  when  the  act  was 
passed  and  had  a  good  right  to  sell  it.  The  nature  of  the  ac 
tion  was  for  a  breach  of  covenant,  in  that  the  letters  patent 
were  void  because  the  legislative  act  was  passed  through  cor 
rupt  influences.  Then,  on  the  I3th  of  February,  1796,  the 
legislature  passed  another  act  declaring  the  former  act  null  and 
void.  Thus,  the  principal  question  was,  whether  the  legisla 
ture  could  repeal  the  first  act  and  rescind  the  sale  which  had 
occurred  under  it,  the  purchasers  being  innocent  of  any  defect 
of  title.  y, 

Chief  Justice  Marshall  delivered  the  opinion  of  the  court, 
and  held,  that 'where  a  legislature  of  a  State  grants  land  in 
fee,  a  subsequent  legislature  cannot  repeal  the  grant  if  an 
innocent  purchaser  has  acquired  title  ^without  knowledge  of 
the  infirmity.  The  grant  made  by  the  State  amounted  to  a 
contract  within  the  Constitution  and  the  subsequent  grant 
made  in  pursuance  of  that  contract  was  an  executed  contract  I 

36  4  Peters,  425. 

37  6  Cranch,  87,  135. 


298  THE  POLITICAL  AND  ECONOMIC 

and  the  State  could  not  pass  a  law  impairing  its  obligation. 
Also  that  contracts  made  by  a  State  were  as  much  within  the 
prohibition  of  the  Constitution  against  the  impairment  of 
the  obligation  of  a  contract  as  contracts  made  by  an  individual. 
Consequently  it  was  held  that,  bona  fide  purchasers  having 
acquired  a  fee  under  the  act  of  1795,  the  State  of  Georgia 
was  prohibited  from  enacting  a  law  which  would  impair  the 
validity  of  the  grant,  and  that  the  prohibition  applied  to  both 
executory  and  executed  contracts.  In  1 1  Peters,  420,  Justice 
McLean  said :  "  If  it  were  not  for  the  opinion  in  Fletcher  v. 
Peck,  I  would  think  the  prohibition  as  to  contracts  applied  only 
to  executory  contracts." 

Chief  Justice  Marshall  again  delivered  the  opinion  of  the 
court  in  the  next  case  on  this  subject  which  was  that  of  New 
Jersey  v.  Wilson,  decided  in  1812.  The  legislature  of  New  Jer 
sey  passed  an  act  providing  that  certain  lands  which  the  State 
contemplated  purchasing  for  the  use  of  the  Delaware  Indians 
should  be  exempt  from  taxation.  The  lands  were  accordingly 
purchased  for  the  Indians  and  conveyed  to  them  in  trust,  and 
thereupon  the  Indians  released  their  claim  to  the  original 
lands.  The  Indians  continued  to  occupy  the  lands  upon  which 
they  had  moved  until  1803,  when  they  were  sold  to  settlers 
by  act  of  the  Legislature,  subsequently  the  Legislature  re 
pealed  the  act  of  1758,  which  exempted  the  lands  from  taxa 
tion.  Chief  Justice  Marshall  held  that  the  original  act  of  the 
legislature  of  New  Jersey,  passed  in  consideration  that  the 
Indians  would  release  their  title  to  the  lands,  which  act  de 
clared  that  the  new  lands  which  should  be  purchased  for  the 
Indians  should  be  exempt  from  taxation,  amounted  to  a  con 
tract,  and  that  any  subsequent  act  of  the  legislature  which 
repealed  the  original  act  violated  that  clause  of  the  Constitu 
tion  of  the  United  States  which  prohibits  a  State  from  im 
pairing  the  obligation  of  a  contract.38 

Chief  Justice  Marshall  again  delivered  the  opinion  of  the 
Court  in  the  next  case  which  touched  this  subject,  the  famous 
case  of  S|urges_jy:s_Crpwninshield.39  Here  the  court  held, 
that  an  act  of  the  legislature  of  New  York  violated  this  clause 
of  the  Constitution.  The  facts  in  the  case  are  as  follows: 
Suit  was  brought  against  the  maker  of  two  promissory  notes. 

88  7  Cranch,  164,  167. 

89  4  Wheaton  122. 


DOCTRINES  OF  JOHN  MARSHALL          299 

The  defendant  pleaded  as  his  defense,  that  he  was  discharged 
from  the  payment  of  the  notes  "  under  an  act  for  the  benefit 
of  insolvent  debtors  and  their  creditors  passed  by  the  legis 
lature  of  New  York,  in  1811."  To  this  there  was  a  general 
demurrer  filed.  Marshall  admitted  that  a  State  might  pass 
a  bankrupt  law  before  Congress  exercised  its  power  to  do  so 
provided  such  State  law  did  not  impair  the  obligation  of  a 
contract.  The  notes  sued  upon  had  been  executed  before  the 
law  was  passed  and  Marshall  in  his  opinion,  expressly  limited 
the  decision  to  the  case  actually  before  the  court.  It  was 
held  that  the  act  of  the  legislature  of  New  York,  so  far  as 
it  attempted  to  discharge  the  maker  of  the  notes  from  paying 
them,  was  contrary  to  the  Constitution  of  the  United  States, 
because  it  impaired  the  obligation  of  contracts. 

DEFINITION  OF  CONTRACT 

In  the  famous  case  of  ^Dartmouth  College  v.  Woodward,40 
decided  in  1819,  the  most  elaborate  exposition  in  regard  to 
contract  was  made.  Chief  Justice  Marshall  in  his  opinion 
said,  that  Dartmouth  College  was  a  private  and  not  a  public 
corporation,  and  later  in  his  decision,  in  regard  to  contracts 
said: 

"  The  term  '  contract,'  as  used  in  this  clause  of  the  Consti 
tution,  must  be  understood  as  intended  to  guard  against  a 
power  of  at  least  doubtful  utility,  the  abuse  of  which  had 
been  extensively  felt;  and  to  restrain  the  legislature  in  future 
from  violating  the  right  to  property.  That  anterior  to  the  for 
mation  of  the  Constitution,  a  course  of  legislation  had  pre 
vailed  in  many,  if  not  in  all,  of  the  States,  which  weakened 
the  confidence  of  man  in  man,  and  embarrassed  all  transactions 
between  individuals  by  dispensing  with  a  faithful  performance 
of  engagements.  To  correct  this  mischief,  by  restraining  the 
power  which  produced  it,  the  State  legislatures  were  forbidden 
'  to  pass  any  law  impairing  the  obligation  of  contracts.'  The 
contracts  referred  to  were  contracts  respecting  property,  under 
which  some  individual  could  claim  a  right  to  something  bene 
ficial  to  himself ;  and  that  since  the  clause  in  the  Constitution 
must,  in  construction,  receive  some  limitation,  it  may  be  con 
fined,  and  ought  to  be  confined,  to  cases  of  this  description ; 

40  4  Wheaton,  518. 


300  THE  POLITICAL  AND  ECONOMIC 

to  cases  within  the  mischief  it  was  intended  to  remedy." 
Then  he  proceeded  to  state  that  it  was  not  "  the  purpose  of  the 
framers  of  the  Constitution  to  restrain  the  States  in  regulat 
ing  their  civil  institutions  adopted  for  internal  government, 
and  that  the  instrument  they  have  given  us  is  not  to  be  so 
construed  may  be  admitted." 

/    This  decision  established  the  important  principle,  that  where 
/a  contract  had  been  entered  into  and  the  rights  of  the  parties 
,  under  it  had  become  fixed,  a  State  could  not,  by  legislative 
1   enactment,  pass  a  law  which  would  impair  those  rights. 

OBLIGATION  OF  CONTRACTS  DEFINED 

)  Chief  Justice  Marshall  created  the  first  judicial  construction 
/of  the  term  obligation  of  contracts.  This  was  given  in  Sturges 
/j|OGrowninshiej.dj41  in  which  he  said: 

"  It  wduTxT  seem  difficult  to  substitute  words  which  are  more 
intelligible,  or  less  liable  to  misconstruction,  than  those  which 
are  to  be  explained.  |  A  contract  is  an  agreement  in  which  a 
party  undertakes  to  do,  or  not  to  do,  a  particular  thing.  The 
law  binds  him  to  perform  his  undertaking,  and  this  is,  of 
course,  the  obligation  of  his  contract." 

Thus,  here  we  have  Marshall's  definition  of  what  the  Consti 
tution  means  when  it  speaks  of  the  obligation  of  a  contract. 
It  is  the  power  or  force  in  the  law,  which  binds  or  compels 
one  to  complete  his  agreement. 

'"  DELEGATION  OF  POWERS  OF  PRESIDENT 

Chief  Justice  Marshall  delivered  the  opinion  in  the  case  of 
Marbury  v.  Madison,42  and  in  commenting  upon  the  power 
of  the  President  said: 

*"  By  the  Constitution  of  the  United  States,  the  President  is 
/  invested  with  certain  important  political  powers,  in  the  exer 
cise  of  which  he  is  to  use  his  own  discretion,  and  is  accountable 
only  to  his  country  in  his  political  character,  and  to  his  own 
conscience.  To  aid  him  in  the  performance  of  these  duties,  he 
is  authorized  to  appoint  certain  officers,  who  act  by  his 
authority  and  in  conformity  with  his  orders. 

"  In  such  cases  their  acts  are  his  acts ;  and  whatever  opinion 

41  4  Wheaton,  122. 
*2  i  Cranch. 


DOCTRINES  OF  JOHN  MARSHALL  301 

may  be  entertained  of  the  manner  in  which  executive  discretion 
may  be  used,  still  there  exists,  and  can  exist,  no  power  to  con 
trol  that  discretion.  .  .  .  The  application  of  this  remark  will 
be  perceived  by  adverting  to  the  act  of  Congress  for  establish 
ing  the  department  of  foreign  affairs.  This  officer,  as  his 
duties  were  prescribed  by  that  act,  is  to  conform  precisely  to  the 
will  of  the  President.  He  is  the  mere  organ  by  whom  that 
will  is  communicated.  The  acts  of  such  an  officer,  as  an  officer, 
can  never  be  examinable  by  the  courts. 

"  But  when  the  legislature  proceeds  to  impose  on  that  officer 
other  duties,  when  he  is  directed  peremptorily  to  perform  cer 
tain  acts,  when  the  rights  of  individuals  are  independent  on  the 
performance  of  those  acts  :  —  he  is  so  far  the  officer  of  the  law ; 
is  amenable  to  the  laws  for  his  conduct  and  cannot  at  his  dis 
cretion  sport  away  the  vested  rights  of  others. 

'  The  conclusion  from  this  reasoning  is,  that  where  the  heads 
of  departments  are  the  political  or  confidential  agents  of  the 
executive,  merely  to  execute  the  will  of  the  President,  or  rather 
to  act  in  cases  in  which  the  executive  possesses  a  constitutional 
or  legal  discretion,  nothing  can  be  more  perfectly  clear  than 
that  their  acts  are  only  politically  examinable.  But  where  a 
specific  duty  is  assigned  by  law,  and  individual  rights  depend 
upon  the  performance  of  that  duty,  it  seems  equally  clear  that 
the  individual  who  considers  himself  injured  has  a  right  to 
resort  to  the  laws  of  his  country  for  a  remedy."  43 

CHIEF  JUSTICE  MARSHALL  ISSUES  SUBPOENA  FOR 
PRESIDENT  JEFFERSON  IN  BURR  TRIAL 

How  far,  if  at  all,  is  the  President  subject  to  the  process  of 
the  courts  in  civil  or  criminal  actions?  There  has  been  great 
diversity  of  opinion  among  lawyers  and  constitutional  writers 
for  more  than  a  century  on  this  question.  The  chief  authority 
in  favor  of  the  view  that  the  President  is  subject  to  the  process 
of  a  court  is  the  decision  of  Chief  Justice  Marshall,  upon  appli 
cation  for  a  subpoena  duces  tecum  directed  to  President  Jeffer 
son  in  the  Burr  trial.  Here  Marshall  issued  an  order  for  a 
subpoena  duces  tecum  requiring  Jefferson  to  appear  and  produce 
at  the  trial  certain  papers,  which  it  was  believed  he  possessed. 
Chief  Justice  Marshall  said: 
43 1  Cranch,  165,  166. 


302  THE  POLITICAL  AND  ECONOMIC 

c<  That  the  President  of  the  United  States  may  be  subpoenaed 
and  examined  as  a  witness  and  required  to  produce  any  paper 
in  his  possession,  is  not  controverted.  The  President,  although 
subject  to  the  general  rules  which  apply  to  others,  may  have 
sufficient  motives  for  declining  to  produce  a  particular  paper, 
and  those  motives  may  be  such  as  to  restrain  the  court  from 
enforcing  its  production.  The  guard  furnished  to  this  high 
officer  to  protect  him  from  being  harassed  by  vexatious  and 
unnecessary  subpoenas  is  to  be  looked  for  in  the  conduct  of  the 
court  after  these  subpoenas  have  been  issued,  not  in  any  cir 
cumstances  which  is  to  precede  their  being  issued.  .  .  .  The 
court  can  perceive  no  objection  to  a  subpoena  duces  tecum  to 
any  person  whatever  provided  the  case  be  such  as  to  justify 
the  process."  44  Marshall  also  said: 

"  In  no  case  of  this  kind  would  a  court  be  required  to  proceed 
against  the  President  as  an  ordinary  individual.  The  objec 
tions  to  such  a  course  are  so  strong  and  so  obvious  that  all  must 
acknowledge  them."  45 

vx^ 

EXTENT  OF  JUDICIAL  POWERS 

What  is  meant  by  extending  the  judicial  power  to  all  cases? 
What  is  a  case  in  this  connection  and  when  does  it  arise? 
Chief  Justice  Marshall  said  : 

"  It  enables  the  judicial  department  to  receive  jurisdiction  to 
the  full  extent  of  the  Constitution,  laws,  and  treaties  of  the 
United  States,  when  any  question  respecting  them  shall  assume 
such  a  form  that  the  judicial  power  is  capable  of  acting  on  it. 
That  power  is  capable  of  acting  only  when  the  subject  is  sub 
mitted  to  it  by  a  party  who  asserts  his  rights  in  the  form 
transcribed  by  law.  It  then  becomes  a  case."  40 

WHAT  IS  A   CASE? 

"  A  case  in  law  or  equity  consists  of  the  right  of  one  party 
as  well  as  of  the  other,  and  may  truly  be  said  to  arise  under 
the  Constitution  or  a  law  of  the  United  States,  whenever  its 
correct  decision  depends  on  the  construction  of  either."  47 

The  words  case  and  cause  are  synonymous  in  legal  nomen- 

**  "  Burr's  Trial,"  Vol.  I,  182. 
*5  "  Burr's  Trial,"  Vol.  II.  536. 
.>6Osborn  v.  U.  S.  Bank,  9  Wheaton,  738,  819. 
47  Cohens  v.  Virginia,  6  Wheaton,  379. 


DOCTRINES  OF  JOHN  MARSHALL          303 

clature  and  either  one  means  a  proceeding  in  court,  a  suit  or 
action.48 

MARSHALL  ON  CASES  AFFECTING  AMBASSADORS 

On  this  subject  Chief  Justice  Marshall  said : 

"If  a  suit  be  brought  against  a  foreign  minister,  the  Su 
preme  Court  alone  has  original  jurisdiction,  and  this  is  shown 
on  the  record.  But,  suppose  a  suit  to  be  brought  which  affects 
the  interest  of  a  foreign  minister,  or  by  which  the  person  of 
his  secretary,  or  of  his  servant,  is  arrested.  The  minister 
does  not,  by  the  mere  arrest  of  his  secretary,  or  his  servant, 
become  a  party  to  this  suit,  but  the  actual  defendant  pleads 
to  the  jurisdiction  of  the  court,  and  asserts  his  privilege.  If 
the  suit  affects  a  foreign  minister,  it  must  be  dismissed,  not 
because  he  is  a  party  to  it,  but  because  it  affects  him.  The 
language  of  the  Constitution  in  the  two  cases  is  different. 
This  court  can  take  cognizance  of  all  cases  '  affecting '  foreign 
ministers;  and,  therefore,  jurisdiction  does  not  depend  on  the 
party  named  in  the  record.  But  this  language  changes  when 
the  enumeration  proceeds  to  the  States.  Why  this  change? 
The  answer  is  obvious.  In  the  case  of  foreign  ministers,  it 
was  intended,  for  reasons  which  all  comprehend,  to  give  the 
national  courts  jurisdiction  over  all  cases  by  which  they  were 
in  any  manner  affected.  In  the  case  of  States,  whose  imme 
diate  or  remote  interests  were  mixed  up  with  a  multitude  of 
cases,  and  who  might  be  affected  in  an  almost  infinite  variety  of 
ways,  it  was  intended  to  give  jurisdiction  in  those  cases  only 
to  which  they  were  actual  parties."  49 

''"ORIGINAL  JURISDICTION  OF  THE  SUPREME  COURT 

Original  jurisdiction  means  that  parties  who  are  authorized 
to  do  so  may  bring  an  action  in  the  Supreme  Court  without 
first  having  brought  it  in  one  of  the  inferior  courts.  This 
clause  of  the  Constitution  names  those  who  may  do  this. 
They  are;  i,  ambassadors,  2,  other  public  ministers,  3,  consuls, 
4,  a  State.  This  limits  the  original  jurisdiction  of  the  Su 
preme  Court  to  a  very  narrow  field.  On  the  subject  of  orig 
inal  jurisdiction,  Chief  Justice  Marshall  said : 

48  Blyen  v.  U.  S.,  13  Wallace,  581-595. 

49  9  Wheaton,  854. 


304  THE  POLITICAL  AND  ECONOMIC 

"  The  original  jurisdiction  of  the  Supreme  Court,  in  cases 
where  a  State  is  a  party,  refers  to  those  cases  in  which,  accord 
ing  to  the  grant  of  power  made  in  the  preceding  clause,  juris 
diction  might  be  exercised  in  consequence  of  the  character  of 
the  party,  and  an  original  suit  might  be  instituted  in  any  of 
the  Federal  courts ;  not  to  those  cases  in  which  an  original  suit 
might  not  be  instituted  in  a  Federal  court.  Of  the  last  de 
scription  is  every  case  between  a  State  and  its  citizens,  and  per 
haps  every  case  in  which  a  State  is  enforcing  its  penal  laws. 
In  such  cases,  therefore,  the  Supreme  Court  cannot  take 
original  jurisdiction.  In  every  other  case,  that  is,  in  every 
case  to  which  the  judicial  power  extends,  and  in  which  original 
jurisdiction  is  not  expressly  given,  that  judicial  power  shall 
be  exercised  in  the  appellate,  and  only  in  the  appellate  form."  50 

TREASON  — LEVYING  WAR 

In  Bowlman's  case,51  in  1807  Chief  Justice  Marshall  in 
regard  to  treason  said :  "  to  constitute  treason  war  must  be 
actually  levied  against  the  United  States.  However  flagitious 
may  be  the  crime  of  conspiring  to  subvert  by  force  the  govern 
ment  of  our  country,  such  conspiracy  is  not  treason.  The  first 
must  be  brought  into  open  action  by  the  assemblage  of  men 
for  a  purpose  treasonable  in  itself,  or  the  fact  of  levying  war 
cannot  have  been  committed.  ...  It  is  not  the  intention  of  the 
court  to  say  that  no  individual  can  be  guilty  of  this  crime  who 
has  not  appeared  in  arms  against  his  country.  On  the  con 
trary,  if  war  be  actually  levied,  that  is,  if  a  body  of  men  be 
actually  assembled  for  the  purpose  of  effecting  by  force  a 
treasonable  purpose,  all  those  who  perform  any  part,  however 
minute,  or  however  remote  from  the  scene  of  action,  and  who 
are  actually  leagued  in  the  general  conspiracy,  are  to  be  con 
sidered  as  traitors.  But. there  must  be  an  actual  assembling 
of  men  for  the  treasonable  purpose,  to  constitute  a  levying  of 
war." 

The  opinion  of  Chief  Justice  Marshall  in  the  Burr  Trial 
covers  the  whole  doctrine  of  treason.  The  courts  have  never 
gone  beyond  it  in  discussing  the  general  subject.  Marshall 
at  the  trial  of  Aaron  Burr  said,  in  referring  to  this  lan 
guage,  according  to  the  opinion  it  is  not  enough  to  be  leagued 

50  6  Wheaton  398,  399. 

51  4  Cranch,  75,  125. 


DOCTRINES  OF  JOHN  MARSHALL  305 

in  the  conspiracy  and  that  war  be  levied,  but  it  is  also  neces 
sary  to  perform  a  part;  that  part  is  the  act  of  levying  war. 
That  part,  it  is  true,  may  be  minute,  it  may  not  be  the  actual 
appearance  in  arms,  and  it  may  be  remote  from  the  scene  of 
action,  that  is,  from  the  place  where  the  arms  are  assembled, 
but  it  must  be  a  part,  and  that  part  must  be  performed  by  a 
person  who  is  leagued  in  the  conspiracy.  This  part,  however 
minute  or  remote,  constitutes  the  overt  act,  of  which  alone  the 
person  who  performs  it  can  be  convicted.52 

U  POWER  OF  THE  COURTS  TO  ANNUL  LAWS 

Upon  this  question  John  Marshall  gave  his  views  at  the 
Ylrgjnia  Convention,  and  made  his  position  very  clear.  He 
said : 

"If  the  United  States  were  to  make  a  law  not  warranted 
by  any  of  the  powers  enumerated  it  would  be  considered  by 
the  judges  as  an  infringement  of  the  Constitution  which  they 
are  to  guard.  They  would  not  consider  such  a  law  as  coming 
under  their  jurisdiction.  They  would  declare  it  void.  To 
what  quarter  will  you  look  for  protection  from  an  infringe 
ment  on  the  Constitution,  if  you  will  not  give  the  power  to  the 
Judiciary?  There  is  no  other  body  that  can  afford  such  pro 
tection. 

"AS  COUNSEL  IN  WARE  v.  HILTON  MARSHALL  DENIES  THE 
POWER  TO  ANNUL  LAWS 

In  the  argument  of  Marshall  in  the  case  of  JVare  v. 
Hilton  53  we  see  that  he  challenged  the  power  of  the  court  to 
pass  upon  the  validity  of  legislation.  He  said : 

"  The  legislative  authority  of  any  country  can  only  be  re 
strained  by  its  own  municipal  constitution;  this  is  a  principle 
that  springs  from  the  very  nature  of  society;  and  the  judicial 
authority  can  have  no  right  to  question  the  validity  of  a  law, 
unless  such  a  jurisdiction  is  expressly  given  by  the  Constitu 
tion.  It  is  not  necessary  to  enquire,  how  the  judicial  authority 
should  act,  if  the  legislature  were  evidently  to  violate  any  of 
the  laws  of  God;  but  property  is  the  creature  of  civil  society, 
and  subject,  in  all  respects,  to  the  disposition  and  control  of 
civil  institutions." 

52  "  Burr's  Trial,"  Vol.  II,  438,  439. 

53  3  Dallas,  211. 


306  THE  POLITICAL  AND  ECONOMIC 


AS  CHIEF  JUSTICE,  MARSHALL  MAINTAINS  THE  POWER 
TO  ANNUL  LAWS 

As  a  member  of  the  Virginia  Convention,54  Marshall  held 
that  the  judiciary  could  declare  certain  laws  void,  as  counsel  in 
Ware  v.  Hilton  55  his  argument  was  at  variance  with  what  he 
said  at  the  Convention,  but  as  Chief  Justice  he  returned  to  his 
original  position  and  expounded  the  same  views  he  held  at  the 
Convention.  In  his  opinion  in  Ma r bury  v.  Madison56  Chief 
Justice  Marshall  said : 

{"  It  is  emphatically  the  province  and  duty  of  the  judicial 
department  to  say  what  the  law  is.  Those  who  apply  the  rule 
to  particular  cases  must  of  necessity  expound  and  interpret 
that  rule.  If  two  laws  conflict  with  each  other,  the  courts 
must  decide  on  the  operation  of  each.  So,  if  a  law  be  in 
opposition  to  the  Constitution;  if  both  the  law  and  the  Con 
stitution  applied  to  a  particular  case,  so  that  the  court  must 
either  decide  that  case  conformably  to  the  law,  disregarding 
the  Constitution;  or  conformably  to  the  Constitution,  disre 
garding  the  law ;  the  court  must  determine  which  of  these  con 
flicting  rules  governs  the  case.  This  is  of  the  very  essence  of 
judicial  duty.T 

In  MartiiLv^Jiiinier-57  Justice  Story  in  his  opinion  held  the 
same,  and  that  doctrine  has  been  adhered  to  ever  since.  Sev 
eral  years  later  in  Cohens  v.  Virginia,58  Marshall  said : 

"  The  constitutiorflirid  laws  of  a  State,  so  far  as  they  are 
repugnant  to  the  Constitution  and  laws  of  the  United  States, 
are  absolutely  void.  In  a  government  so  constituted,  is  it 
unreasonable  that  the  judicial  power  should  be  competent  to 
give  efficacy  to  the  constitutional  laws  of  the  legislature? 
That  department  can  decide  on  the  validity  of  the  constitution 
or  law  of  a  State,  if  it  be  repugnant  to  the  Constitution  or  to  a 
law  of  the  United  States.  Is  it  unreasonable  that  it  should  also 
be  empowered  to  decide  on  the  judgment  of  a  State  tribunal 
enforcing  such  unconstitutional  law?  Is  it  so  very  unreason 
able  as  to  furnish  a  justification  for  controlling  the  words  of 
the  Constitution?  We  think  it  is  not.  We  think  that  in  a 

54  Eliot,  3,  553. 

55  3  Dallas,  211. 

56  i  Cranch,  147. 

57  i  Wheaton,  264,  304,  344. 

58  6  Wheaton,  414,  415. 


DOCTRINES  OF  JOHN  MARSHALL          307 

government  acknowledgedly  supreme,  with  respects  to  objects 
of  vital  interest  to  the  nation,  there  is  nothing  inconsistent 
with  sound  reason,  nothing  incompatible  with  the  nature  of 
government,  in  making  all  its  departments  supreme,  so  far  as 
respects  those  objects,  and  so  far  as  is  necessary  to  their  attain 
ment.  The  propriety  of  intrusting  the  construction  of  the 
Constitution,  and  laws  made  in  pursuance  thereof,  to  the 
judiciary  of  the  Union,  has  not,  we  believe,  as  yet,  been  drawn 
into  question." 

v 
THE  GOVERNMENT  OF  TERRITORIES 

The  power  to  acquire  territory  is  inherent  in  every  sov 
ereignty,  and  the  acquisition  may  be  made  by  treaty,  purchase, 
discovery,  or  conquest.  The  most  usual  mode  is  by  treaty. 
When  territory  is  acquired  by  the  United  States,  Congress 
can  form  it  into  a  district  or  subdivision  which  is  inferior  to  a 
territory,  and  in  time  it  can  be  formed  into  a  territory  with  a 
legislature  elected  by  the  citizens  who  are  qualified  to  vote  and 
who  reside  in  such  territory.  The  leading  officials  are  ap 
pointed  by  the  President.  Much  light  is  given  to  this  subject 
by  Chief  Justice  Marshall  in  the  case  of  the  American  Insur 
ance  Company  v.  Canter,59  he  said : 

rl  Perhaps  the  power  of  governing  a  territory  belonging  to 
the  United  States,  which  has  not,  by  becoming  a  State,  ac 
quired  the  means  of  self-government,  may  result  necessarily 
from  the  facts  that  it  is  not  within  the  jurisdiction  of  any 
particular  State,  and  is  within  the  power  and  jurisdiction  of 
the  LTnited  States.  The  right  to  govern  may  be  the  inevitable 
consequence  of  the  right  to  acquire  territory.  Whichever 
may  be  the  source  whence  the  power  is  derived,  the  posses 
sion  of  it  is  unquestioned." 

AMENDMENTS  TO  THE  CONSTITUTION 

Li_Fl^herjv.JPeck,60  Chief  Justice  Marshall  said : 

"  The  principled  asserted,  that  one  legislature  is  competent 

to  repeal  any  act  which  a  former  legislature  was  competent  to 

pass;  and  that  one  legislature  cannot  abridge  the  powers  of  a 

succeeding  legislature.     The  correctness  of  this  principle,  so 

69  i  Peters,  541. 
60  6  Cranch,  87. 


308  THE  POLITICAL  AND  ECONOMIC 

far  as  respects  general  legislation,  can  never  be  controverted. 
But  if  an  act  be  done  under  a  law  a  succeeding  legislature 
cannot  undo  it.  The  past  cannot  be  recalled  by  the  most  ab 
solute  power." 

RELIGIOUS  TESTS 

Commenting  upon  the  provision  "  But  no  religious  Test 
shall  ever  be  required  as  a  Qualification  to  any  Office  or  public 
Trust  under  the  United  States;"  Chief  Justice  Marshall,  in 
M'Cullo.cJh  v.xMaryland,61  said: 

*  The  powers  vested  in  Congress  may  certainly  be  carried 
into  execution,  without  prescribing  an  oath  of  office.  The 
power  to  exact  this  security  for  the  faithful  performance  is 
not  given,  nor  is  it  indispensably  necessary.  The  different 
departments  may  be  established;  taxes  may  be  imposed  and 
collected;  armies  and  navies  may  be  raised  and  maintained; 
and  money  may  be  borrowed,  without  requiring  an  oath  of 
office.  It  might  be  argued,  with  as  much  plausibility  as  other 
incidental  powers  have  been  assailed,  that  the  Convention  was 
not  unmindful  of  this  subject.  The  oath  which  might  be 
exacted  —  that  of  fidelity  to  the  Constitution  —  is  prescribed, 
and  no  other  can  be  required.  Yet,  he  would  be  charged  with 
insanity  who  should  contend,  that  the  Legislature  might  not 
superadd  to  the  oath  directed  by  the  Constitution  such  other 
oath  of  office  as  its  wisdom  might  suggest." 

THE  ADOPTION  OF  THE  FIRST  TEN  AMENDMENTS 

In  regard  to  the  adoption  of  the  first  ten  amendments  John 
Marshall  gives  the  following  account  of  the  situation,  in  his 
"Life  of  Washington,"62  he  says: 

"  In  the  course  of  this  session  was  also  brought  forward  a 
proposition,  made  by  Mr.  Madison,  for  recommending  to  the 
consideration  and  adoption  of  the  States,  several  new  articles 
to  be  added  to  the  Constitution. 

"  Many  of  those  objections  to  it  which  had  been  urged  with 
all  the  vehemence  of  conviction,  and  which  in  the  opinion  of 
some  of  its  advocates,  were  entitled  to  serious  consideration, 
were  believed  by  the  most  intelligent  to  exist  only  in  imagina- 

61 4  Wheaton,  316,  416. 
62  Vol.  5,  207-210. 


DOCTRINES  OF  JOHN  MARSHALL  309 

tion,  and  to  derive  their  sole  support  from  an  erroneous 
construction  of  the  instrument.  Others  were  upon  points  on 
which  the  objectors  might  be  gratified  without  injury  to  the 
system.  To  conciliate  the  affections  of  their  brethren  to  the 
government,  was  an  object  greatly  desired  by  its  friends. 
Disposed  to  respect  what  they  deemed  the  errors  of  their  op 
ponents,  where  that  respect  could  be  manifested  without  a  sac 
rifice  of  essential  principles,  they  were  anxious  to  annex  to  the 
Constitution  those  explanations  and  barriers  against  the  pos 
sible  encroachments  of  rulers  on  the  liberties  of  the  people 
which  had  been  loudly  demanded,  however  unfounded,  in  their 
judgments,  might  be  the  fears  by  which  those  demands  were 
suggested.  These  dispositions  were  perhaps,  in  some  measure, 
stimulated  to  exertion  by  motives  of  the  soundest  policy.  The 
formidable  minorities  in  several  of  the  conventions,  which  in 
the  legislatures  of  some  powerful  States  had  become  ma 
jorities,  and  the  refusal  of  two  States  to  complete  the  union, 
were  admonitions  not  to  be  disregarded,  of  the  necessity  of 
removing  jealousies  however  misplaced,  which  operated  on 
so  large  a  portion  of  society.  Among  the  most  zealous 
friends  of  the  Constitution  therefore,  were  found  some  of  the 
first  and  warmest  advocates  for  amendments. 

"  To  meet  the  various  ideas  expressed  by  the  several  con 
ventions  ;  to  select  from  the  mass  of  alterations  which  they  had 
proposed  those  which  might  be  adopted  without  stripping  the 
government  of  its  necessary  powers;  to  condense  them  into  a 
form  and  compass  which  would  be  acceptable  to  persons  dis 
posed  to  indulge  the  caprice,  and  to  adopt  the  language  of  their 
particular  States;  were  labours  not  easily  to  be  accomplished. 
But  the  greatest  difficulty  to  be  surmounted  was,  the  disposition 
to  make  those  alterations  which  would  enfeeble  and  materially 
injure  the  future  operations  of  the  government.  At  length, 
twelve  articles  in  addition  to  and  amendment  of  the  Consti 
tution  were  assented  to  by  two-thirds  of  both  Houses  of  Con 
gress,  and  proposed  to  the  legislatures  of  the  several  States. 
Although  the  necessity  of  these  amendments  had  been  urged 
by  the  enemies  of  the  Constitution  and  denied  by  its  friends, 
they  encountered  scarcely  any  other  opposition  in  the  State 
legislatures,  than  was  given  by  the  leaders  of  the  Anti-Federal 
party.  Admitting  the  articles  to  be  good  in  themselves,  and 
to  be  required  by  the  occasion,  it  was  contended  that  they 


310  THE  POLITICAL  AND  ECONOMIC 

were  not  sufficient  for  the  security  of  liberty;  and  the  appre 
hension  was  avowed  that  their  adoption  would  quiet  the  fears 
of  the  people,  and  check  the  pursuit  of  those  radical  alterations 
which  would  afford  a  safe  and  adequate  protection  to  their 
rights.  Viewing  many  of  those  alterations  which  were  re 
quired  as  subversive  of  the  fundamentals  of  the  government, 
and  sincerely  desirous  of  smoothing  the  way  to  a  reunion  of 
political  sentiment  by  yielding  in  part  to  objections  which  had 
been  pronounced  important,  the  Federalists,  almost  universally, 
exerted  their  utmost  powers  in  support  of  the  particular 
amendments  which  had  been  recommended.  They  were  at 
length  ratified  by  the  legislatures  of  three-fourths  of  the  States, 
and  probably  contributed  in  some  degree,  to  diminish  the 
jealousies  which  had  been  imbibed  against  the  Federal  Con- 


An  amendment  becomes  part  of  the  Constitution  when  it  is 
ratified  by  the  last  State  necessary  to  complete  the  three- 
fourths  of  the  States  required  by  the  Constitution. 

1    THE  FIRST  TEN  AMENDMENTS  AS  A  BILL  OF  RIGHTS. 
THE  INTENTIONS  OF  THE  FRAMERS 

These  amendments  are  limitations  upon  the  powers  of  the 
Federal  Government,  and  were  intended  as  a  bill  of  rights. 
Twenty  years  after  the  first  ten  amendments  were  adopted, 
Chief  Justice  Marshall,  in  the  case  oLFletcher  v.  Pe^k,63  .said : 
'"  The  Constitution  of  the  United  States  contains  what  may  be 
'deemed  a  Bill  of  Rights  for  the  people  of  each  State." 
Whether  or  not  the  amendments  were  meant  to  be  limitations 
on  the  States  or  on  the  General  government  was  settled  by 
the  United  States  Supreme  Court  in  1833,  in  the  case  of 
Barren  v.  Mayor  of  Baltimore,64  when  Chief  Justice  Marshall, 
after  referring  to  the  adoption  of  the  amendments,  said  : 

"  They  contained  no  expression  indicating  an  intention  to 
apply  them  to  the  State  governments,  and  this  court  cannot  so 
apply  them."  .  .  . 

"  Had  the  people  of  the  several  States,  or  any  of  them, 
required  changes  in  their  constitutions ;  had  they  required  ad 
ditional  safeguards  to  liberty  from  the  apprehended  encroach- 

63  6  Cranch,   138. 

e*  7  Peters,  143,  247,  249. 


DOCTRINES  OF  JOHN  MARSHALL          311 

ments  of  their  particular  governments ;  the  remedy  was  in 
their  own  hands,  and  would  have  been  applied  by  themselves. 
A  convention  would  have  been  assembled  by  the  discontented 
States,  and  the  required  improvement  would  have  been  made 
by  itself.  The  unwieldy  and  cumbrous  machinery  of  pro 
curing  a  recommendation  from  two-thirds  of  Congress,  and 
the  assent  of  three-fourths  of  their  sister  States,  could  never 
have  occurred  to  any  human  being  as  a  mode  of  doing  that 
which  might  be  effected  by  the  State  itself.  Had  the  framers 
of  these  amendments  intended  them  to  be  limitations  on  the 
powers  of  the  State  governments,  they  would  have  imitated  the 
framers  of  the  original  Constitution,  and  have  expressed  that 
intention.  Had  Congress  engaged  in  the  extraordinary  occu 
pation  of  improving  the  Constitutions  of  the  several  States  by 
affording  the  people  additional  protection  from  the  exercise  of 
power  by  their  own  government  in  matters  which  concerned 
themselves  alone,  they  would  have  declared  this  purpose  in 
plain  and  intelligible  language." 

"  But  it  is  universally  understood,  it  is  a  part  of  the  history 
of  the  day,  that  the  great  revolution  which  established  the  Con 
stitution  of  the  United  States,  was  not  effected  without  im 
mense  opposition.  Serious  fears  were  extensively  entertained 
that  those  powers  which  the  patriot  statesmen,  who  then 
watched  over  the  interests  of  our  country,  deemed  essential 
to  union,  and  to  the  attainment  of  those  invaluable  objects  for 
which  union  was  sought,  might  be  exercised  in  a  manner  dan 
gerous  to  liberty.  In  almost  every  convention  by  which  the 
Constitution  was  adopted,  amendments  to  guard  against  the 
abuse  of  power  were  recommended.  These  amendments  de 
manded  security  against  the  apprehended  encroachments  of 
the  general  government  —  not  against  those  of  the  local  gov 
ernments." 

"  These  amendments  contain  no  expression  indicating  an  in 
tention  to  apply  them  to  the  State  governments." 

V 
THE  ELEVENTH  AMENDMENT,  ITS  SCOPE 

Chief  Justice  Marshall,  in  Cohens  v.  Virginia,65  of  this 
amendment  said.: 

"  That  its  motive  was  not  to  maintain  the  sovereignty  of  a 

65  6  Wheaton,  264,  406,  407. 


312  THE  POLITICAL  AND  ECONOMIC 

State  from  the  degradation  supposed  to  attend  a  compulsory 
appearance  before  the  tribunals  of  the  nation,  may  be  inferred 
from  the  terms  of  the  amendment.  It  does  not  comprehend 
controversies  between  two  or  more  States,  or  between  a  State 
and  a  foreign  State.  The  jurisdiction  of  the  court  still  ex 
tends  to  these  cases;  and  in  these  a  State  may  still  be  sued. 
We  must  ascribe  the  amendment,  then,  to  some  other  cause 
than  the  dignity  of  a  State.  There  is  no  difficulty  in  finding 
this  cause.  Those  who  were  inhibited  from  commencing  a 
suit  against  a  State,  or  from  prosecuting  one  which  might  be 
commenced  before  the  adoption  of  the  amendment,  were  per 
sons  who  might  probably  be  its  creditors.  There  was  not 
much  reason  to  fear  that  foreign  or  sister  States  would  be 
creditors  to  any  considerable  amount,  and  there  was  reason 
to  retain  the  jurisdiction  of  a  court  in  those  cases,  because  it 
might  be  essential  to  the  preservation  of  peace.  The  amend 
ment,  therefore,  extended  to  suits  commenced  or  prosecuted 
by  individuals,  but  not  to  those  brought  by  States. 

"  The  first  impression  made  on  the  mind  by  this  amend 
ment  is,  that  it  was  intended  for  those  cases,  and  for  those 
only,  in  which  some  demand  against  a  State  is  made  by  an 
individual  in  the  courts  of  the  Union.  If  we  consider  the 
causes  to  which  it  is  to  be  traced,  we  are  conducted  to  the 
same  conclusion.  A  general  interest  might  well  be  felt  in 
leaving  to  a  State  the  full  power  of  consulting  its  convenience 
in  the  adjustment  of  its  debts,  or  of  other  claims  upon  it,  but 
no  interest  could  be  felt  in  so  changing  the  relations  between 
the  whole  and  its  parts,  as  to  strip  the  government  of  the  means 
of  protecting,  by  the  instrumentality  of  its  courts,  the  Constitu 
tion  and  laws  from  active  violation.  The  amendment  means 
the  judicial  power  is  not  to  extend  to  any  suit  in  law  or 
equity,  commenced  or  prosecuted  against  one  of  the  United 
States,  by  citizens  of  another  State." 

v  A  STATE  AS  A  PARTY  TO  A  SUIT.    WHEN  IT  IS  A  PARTY 

In  psbprn_Y,_Bank  of  the  United  States66  Chief  Justice 
Marshall  said : 

"  It  may,  we  think,  be  laid  down  as  a  rule  which  admits  of 
no  exception,  that,  in  all  cases  where  jurisdiction  depends  on 

68  9  Wheaton,  738,  57. 


DOCTRINES  OF  JOHN  MARSHALL          313 

the  party,  it  is  the  party  named  in  the  record.  Consequently, 
the  nth  amendment,  which  restrains  the  jurisdiction  granted 
by  the  Constitution  over  suits  against  States,  is,  of  necessity, 
limited  to  those  suits  in  which  a  State  is  the  party  on  the  rec 
ord.  The  amendment  has  its  full  effect,  if  the  Constitution  be 
construed  as  it  would  have  been  construed  had  the  jurisdiction 
of  the  court  never  been  extended  to  suits  brought  against  a 
State  by  the  citizens  of  another  State  or  by  aliens."  67 

THE  IMPLIED  POWERS  OF  CONGRESS 

In  the  case  of  McCulloch  v.  Maryland,68  Chief  Justice 
Marshall  said  : 

'  The  sound  construction  of  the  Constitution  must  allow  to 
the  national  legislature  that  discretion,  with  respect  to  the 
means  by  which  the  powers  it  confers  are  to  be  carried  into 
execution,  which  will  enable  that  body  to  perform  the  high 
duties  assigned  to  it,  in  the  manner  most  beneficial  to  the 
people.  Let  the  end  be  legitimate,  let  it  be  within  the  scope  of 
the  Constitution,  and  all  means  which  are  appropriate,  which 
are  plainly  adapted  to  that  end,  which  are  not  prohibited,  but 
consist  with  the  letter  and  spirit  of  the  Constitution,  are  con 
stitutional." 

^   MARBURY  v.  MADISON 

This  was  the  first  great  decision  of  Chief  Justice  Marshall. 
It  is  one  of  the  base-stones  of  his  reputation.  Before  this,  he 
delivered  five  opinions,  one  involving  a  claim  to  salvage  turn 
ing  upon  an  alleged  recapture,  in  which  he  undertook  to  review 
elaborately  our  relations  towards  France  in  1799,  and  declared 
that  they  were  those  of  a  partial  war  (see  Talbot  v.  Seeman, 
i  Cr.  i  (1801))  ;  one  relating  to  the  proper  method  of  appro 
priating  waste  lands  in  Kentucky  (Wilson  v.  Mason,  I  Cranch 
45  (1801))  ;  one  in  which  he  upheld  the  treaty  obligations  of 
the  nation,  even  though  such  a  course  might  involve  an  inter 
ference  with  private  rights  vested  under  a  decree  of  condem 
nation  in  an  inferior  court  (U.  S.  v.  Schooner  Peggy,  i  Cranch 

67  The  decisions  are  not  harmonious  and  the  earlier  judgments  or  opin 
ions  have  been  modified  or  overruled  in  regard  to  the  question,  "  When 
is  a  State  a  party  to  a  suit?"  —  "Watson  on  the  Constitution,"'  Vol.  II,  p. 


68  4  Wheaton,  316,  421. 


314  THE  POLITICAL  AND  ECONOMIC 

103)  ;  and  two  involving  mere  matters  of  practice,  (Resler  v. 
Shehee,  i  Cranch,  1 1 1 )  the  latter  turning  upon  considerations 
of  the  law  relating  to  executions  (Turner  v.  Fendall,  i  Cranch 
117). 

The  next  case  was  that  of  Marbury  v.  Madison  ( i  Cranch, 
137.  1803).  The  facts  of  this  case  were  as  follows:  —  In 
the  December  term,  1801,  Chas!  Lee,  late  Attorney  General  of 
the  United  States,  moved  for  a  rule  to  show  cause  why  a 
mandamus  should  not  issue  addressed  to  Madison,  then  Secre 
tary  of  State,  commanding  him  to  deliver  a  commission  to 
Marbury,  whom  President  Adams,  before  the  expiration  of  his 
term,69  had  nominated  as  a  Justice  of  the  Peace  for  the  District 
of  Columbia.  The  nomination  had  been  confirmed  by  the 
Senate.  A  commission  had  been  filled  out,  and  signed  by  the 
President  of  the  United  States,  and  also  sealed  with  the  seal 
of  the  United  States,  but  it  had  not  been  delivered  when 
Thomas  Jefferson  took  the  reins  of  government,  as  President 
of  the  United  States.  Jefferson  countermanded  the  issue  of 
the  commission  on  the  ground  that  the  appointment  was  incom 
plete  and  void  on  account  of  the  fact,  that  the  commission  had 
remained  undelivered.  The  application  made  to  the  Supreme 
Court  was  for  the  exercise  of  its  original  jurisdiction  under 
the  terms  of  the  Judiciary  Act,  and  the  main  question  undoubt- 

69  "  President  Adams  at  length  decided  to  have  a  cabinet  he  could  con 
trol.  He  asked  Pickering  to  resign.  Timothy  said  he  was  poor  and 
needed  the  money,  therefore  he  could  not  resign.  Adams  doubtless  re 
membered  son-in-law  Smith,  whom  Pickering  had  opposed  on  the  score 
of  his  poverty,  and  he  dismissed  Timothy  summarily.  McHenry,  Secre 
tary  of  War,  he  also  forced  to  resign.  To  fill  these  vacancies,  John  Mar 
shall  was  appointed  Sec.  of  State  and  Samuel  Dexter  Sec,  of  War.  .  .  . 
Mr.  Jefferson  said  that  the  Federalists,  routed  at  the  polls,  retreated 
into  the  judiciary.  This  is  true.  Mr.  Adams  and  his  party  knew  where 
their  haven,  their  fortress  was,  and  they  ran  into  it.  Posts  were  hur 
riedly  filled  with  stalwart  partizans.  Pres.  Adams  kept  on  filling  up  the 
offices  with  Federalists  till  nine  o'clock  of  the  last  night  of  his  term.  The 
whole  administration  was  made  a  deep,  solid,  political  color.  No  Repub 
lican  spot,  stripe,  or  trimming  appeared  anywhere  to  relieve  the  dull  mo 
notony  of  Federalism. 

"  John  Marshall,  already  Sec.  of  State,  was  given  an  additional  office. 
He  was  appointed  Chief  Justice,  a  place  from  which  he  was  to  fulminate 
rank  Federalism  with  authoritative  yoke  for  more  than  a  generation. 

"  The  time  being  short  and  the  object  worthy,  Mr.  Adams  continued  to 
sign  commissions,  and  John  Marshall,  by  candle-light,  continued  to  coun 
tersign.  At  midnight,  so  the  story  goes,  Lev!  Lincoln  stepped  into  the 
room,  drew  Jefferson's  watch  upon  the  industrious  Marshall,  and  made 
him  stop."  (Watson's  "  Life  of  Jefferson,"  p.  379.) 


DOCTRINES  OF  JOHN  MARSHALL          315 

edly  was  whether  such  a  writ  could  issue  from  the  Supreme 
Court  under  the  gift  of  a  jurisdiction  by  Congress  in  direct 
violation  of  the  terms  of  the  Constitution  in  distributing  orig 
inal  and  appellate  authority.     That  delivery  was  not  essential  ^ 
to  the  validity  of  letters  patent,  and  that  the  right  of  the  plain-   I 
tiff  to  his  office  was  complete,  and  hence  he  was  entitled  to  a  ; 
remedy,   was  held  by  the  court.     Congress  could  not  give  r" 
original  jurisdiction  to  the  Supreme  Court,  in  cases  not  sanc 
tioned  by  the  Constitution,  so  the  application  must  be  refused. 

The  fact  that  it  was  the  first  authoritative  announcement  by 
the  Supreme  Court  that  it  had  the  right  as  well  as  the  power  to 
declare  null  and  void  an  Act  of  Congress  in  violation  of  the 
Constitution,  gave  this  case  wide  attention  and  great  im 
portance.  This  case  has  established  principles  which  have 
never  been  controverted.  The  ministerial  and  executive 
officers  of  the  government  all  over  the  country,  are  by  this  case 
subjected  to  the  control  of  the  courts  in  regard  to  the  execution 
of  a  major  part  of  their  duties. 

The  letters  of  Jefferson  show,  and  the  general  attitude  of 
both  men,  Jefferson  and  Marshall,  makes  it  plain  that  Marbury 
and  Madison,  were  the  John  Doe  and  Richard  Roe  of  the  eject 
ment;  the  real  issue  was  between  John  Marshall  and  Thomas 
Jefferson.  The  opinion  of  Marshall  was  regarded  by  Jefferson 
as  a  defiance.  He  looked  at  nearly  all  of  Marshall's  opinions 
as  being  hostile  acts.70 

In  this  case  the  decision  of  the  Court  turned  on  the  point 
thai  Supreme  Court  had  no  power  tojssue  a  writ  of  rqandatnus 


directing  the  delivery  of  the  commission.  As  the  Constitution 
gave  to  the  Court  no  original  jurisdiction  in  such  a  case,  and 
the  Judiciary  Act,  in  so  far  as  it  attempted  to  increase  the 
jurisdiction,  conflicted  with  the  Constitution,  and  therefore  was 
void.  Thus  we  see  that  the  actual  decision  was  against  Mar- 
bury.  The  opinion  as  a  whole  infuriated  the  Jeffersonians  to 
a  great  degree,  and  as  one  writer  on  the  subject  says :  "  It 
cannot  be  denied  that  such  an  opinion  was  highly  calculated  to 
inflame  the  Jeffersonians,  who  contended  that  Congress,  not 
the  Supreme  Court  of  Federalists,  had  the  right  to  decide  the 
constitutionality  of  its  laws."  71  The  decision  as  a  whole 

70  Letter  of  Thomas  Jefferson  to  Thomas  Ritchie,  December  25,  1820. 
"Jefferson's   Works,"  Vol.  VII,  p.   192. 
71 "  The  Constitutional  Decisions  of  Marshall,"  Vol.  I,  p.  5. 


316  THE  POLITICAL  AND  ECONOMIC 

enraged  Jefferson  and  the  Republicans  and  indirectly  caused 
the  impeachment  of  Pickering  and  a  violent  attack  on  the 
Judiciary  which  finally  culminated  in  the  unsuccessful  attempt 
to  impeach  Justice  Chase.  This  great  decision  does  not  con 
tain  a  single  hint  of  this  intense  partisan  quarrel  that  was  at 
the  time  underlying  the  case.  In  the  opening  words  of  the 
case,  Chief  Justice  Marshall  said:  "  The  peculiar  delicacy  of 
this  case,  the  novelty  of  some  of  its  circumstances,  and  the  real 
difficulty  attending  the  points  which  occur  in  it,  require  a  com 
plete  exposition  of  the  principles  on  which  the  opinion  to  be 
given  by  the  Court  is  founded."  And  later  in  the  decision  he 
says :  "  The  intimate  political  relation  subsisting  between  the 
President  of  the  United  States  and  the  heads  of  Departments 
necessarily  renders  any  legal  investigation  of  the  acts  of  one 
of  those  high  officers  peculiarly  irksome,  as  well  as  delicate; 
and  excites  some  hesitation  with  respect  to  the  propriety  of 
entering  into  such  investigation.  Impressions  are  often  re 
ceived  without  much  reflection  or  examinations,  and  it  is  not 
wonderful,  that  in  such  a  case  as  this  the  assertion  by  an  indi 
vidual,  of  his  legal  claims  in  a  court  of  justice,  to  which  claims 
it  is  the  duty  of  the  court  to  attend,  should  at  first  view  be  con 
sidered  by  some  as  an  attempt  to  intrude  into  the  cabinet,  and 
to  intermeddle  with  the  prerogatives  of  the  executive."  Thus 
we  see  from  the  temper  of  the  opinion  that  there  is  much  to  be 
read  between  the  lines.  The  Federalists  went  to  pieces,  and 
Jefferson,  his  most  hated  and  bitterest  political  enemy,  came 
into  power. 

Chief  Justice  Marshall  delivered  the  opinion  of  the  Court  on 
;  the  24th  of  February,  1803. 


OPINION    OF   THE    COURT. 

At  the  last  term,  on  the  affidavits  then  read  and  filed  with  the 
clerk,  a  rule  was  granted  in  this  case,  requiring  the  secretary  of 
state  to  show  cause  why  a  mandamus  should  not  issue,  direct 
ing  him  to  deliver  to  William  Marbury  his  commission  as  a 
justice  of  the  peace  for  the  county  of  Washington,  in  the  dis 
trict  of  Columbia. 

No  cause  has  been  shown,  and  the  present  motion  is  for  a 
mandamus.  The  peculiar  delicacy  of  this  case,  the  novelty  of 
some  of  its  circumstances,  and  the  real  difficulty  attending 


DOCTRINES  OF  JOHN  MARSHALL  317 

the  points  which  occur  in  it,  require  a  complete  exposition  of 
the  principles  on  which  the  opinion  to  be  given  by  the  court 
is  founded. 

These  principles  have  been,  on  the  side  of  the  applicant,  very 
ably  argued  at  the  bar.  In  rendering  the  opinion  of  the  court 
there  will  be  some  departure  in  form,  though  not  in  substance, 
from  the  points  stated  in  that  argument. 

In  the  order  in  which  the  court  has  viewed  this  subject,  the 
following  questions  have  been  considered  and  decided :  — 

ist.  Has  the  applicant  a  right  to  the  commission  he  de 
mands  ? 

2d.  If  he  has  a  right,  and  that  right  has  been  violated,  do 
the  laws  of  his  country  afford  him  a  remedy? 

3d.  If  they  do  afford  him  a  remedy,  is  it  a  mandamus 
issuing  from  this  court? 

The  first  object  of  inquiry  is, — 

ist.  Has  the  applicant  a  right  to  the  commission  he  de 
mands  ? 

His  right  originates  in  an  act  of  Congress,  passed  in  Februn 
ary,  1801,  concerning  the  district  of  Columbia. 

After  dividing  the  district  into  two  counties,  the  eleventh 
section  of  this  law  enacts,  "  that  there  shall  be  appointed,  in  .. 
and  for  each  of  the  said  counties,  such  number  of  discreet  per 
sons  to  be  justices  of  the  peace  as  the  president  of  the  United 
States  shall,  from  time  to  time,  think  expedient,  to  continue  in 
office  for  five  years. 

It  appears  from  the  affidavits,  that  in  compliance  with  this 
law,  a  commission  for  William  Marbury,  as  a  justice  -of  the 
peace  for  the  county  of  Washington,  was  signed  by  John 
Adams,  then  president  of  the  United  States ;  after  which  the 
seal  of  the  United  States  was  affixed  to  it ;  but  the  commission 
has  never  reached  the  person  for  whom  it  was  made  out. 

In  order  to  determine  whether  he  was  entitled  to  this  com 
mission,  it  becomes  necessary  to  inquire  whether  he  has  been 
appointed  to  the  office.  For  if  he  has  been  appointed,  the  law 
continues  him  in  office  for  five  years,  and  he  is  entitled  to  the 
possession  of  those  evidences  of  office,  which,  being  completed, 
became  his  property. 

The  second  section  of  the  second  article  of  the  constitution 
declares  that  "  the  president  shall  nominate,  and,  by  and  with 
the  advice  and  consent  of  the  senate,  shall  appoint  ambassadors, 


3i8  THE  POLITICAL  AND  ECONOMIC 

other  public  ministers,  and  consuls,  and  all  other  officers  of  the 
United  States  whose  appointments  are  not  otherwise  provided 
for." 

The  third  section  declares  that  "  he  shall  commission  all  the 
officers  of  the  United  States." 

An  act  of  congress  directs  the  secretary  of  state  to  keep  the 
seal  of  the  United  States,  "  to  make  out  and  record,  and  affix 
the  said  seal  to,  all  civil  commissions  to  officers  of  the  United 
States,  to  be  appointed  by  the  president,  by  and  with  the  con 
sent  of  the  Senate,  or  by  the  president  alone ;  provided,  that  the 
said  seal  shall  not  be  affixed  to  any  commission  before  the  same 
shall  have  been  signed  by  the  president  of  the  United  States." 

These  are  the  clauses  of  the  constitution  and  laws  of  the 
United  States  which  affect  this  part  of  the  case.  They  seem  to 
contemplate  three  distinct  operations  : 

ist.  The  nomination.  This  is  the  sole  act  of  the  president, 
and  is  completely  voluntary. 

2d.  The  appointment.  This  is  also  the  act  of  the  president, 
and  is  also  a  voluntary  act,  though  it  can  only  be  performed 
by  and  with  the  advice  and  consent  of  the  senate. 

3d.  The  commission.  To  grant  a  commission  to  a  person 
appointed  might,  perhaps,  be  deemed  a  duty  enjoined  by  the 
constitution.  "  He  shall,"  says  that  instrument,  "  commission 
all  the  officers  of  the  United  States." 

The  acts  of  appointing  to  office,  and  commissioning  the 
person  appointed,  can  scarcely  be  considered  as  one  and  the 
same ;  since  the  power  to  perform  them  is  given  in  two  separate 
and  distinct  sections  of  the  constitution.  The  distinction  be 
tween  the  appointment  and  the  commission  will  be  rendered 
more  apparent  by  adverting  to  that  provision,  in  the  second 
section  of  the  second  article  of  the  constitution,  which  author 
izes  congress  "  to  vest  by  law  the  appointment  of  such  in 
ferior  officers  as  they  think  proper  in  the  president  alone,  in 
the  courts  of  law,  or  in  the  heads  of  departments ;  "  thus  con 
templating  cases  where  the  law  may  direct  the  president  to  com 
mission  an  officer  appointed  by  the  courts,  or  by  the  heads  of 
departments.  In  such  a  case,  to  issue  a  commission  would  be 
apparently  a  duty  distinct  from  the  appointment,  the  perform 
ance  of  which,  perhaps,  could  not  legally  be  refused. 

Although  that  clause  of  the  constitution,  which  requires  the 
president  to  commission  all  the  officers  of  the  United  States, 


DOCTRINES  OF  JOHN  MARSHALL  319 

may  never  have  been  applied  to  officers  appointed  otherwise 
than  by  himself,  yet  it  would  be  difficult  to  deny  the  legislative 
power  to  apply  it  to  such  cases.  Of  consequence,  the  constitu 
tional  distinction  between  the  appointment  to  an  office  and  the 
commission  of  an  officer  who  has  been  appointed  remains  the 
same  as  if  in  practice,  the  president  had  commissioned  officers 
appointed  by  an  authority  other  than  his  own. 

It  follows,  too,  from  the  existence  of  this  distinction,  that, 
if  an  appointment  was  to  be  evidenced  by  any  public  act  other 
than  the  commission,  the  performance  of  such  public  act 
would  create  the  officer ;  and,  if  he  was  not  removable  at  the 
will  of  the  president,  would  either  give  him  a  right  to  his 
commission,  or  enable  him  to  perform  the  duties  without  it. 

These  observations  are  premised  solely  for  the  purpose  of 
rendering  more  intelligible  those  which  apply  more  directly 
to  the  particular  case  under  consideration. 

This  is  an  appointment  made  by  the  president,  by  and  with 
the  advice  and  consent  of  the  senate,  and  is  evidenced  by  no 
act  but  the  commission  itself.  In  such  a  case,  therefore,  the 
commission  and  the  appointment  seem  inseparable;  it  being 
almost  impossible  to  show  an  appointment  otherwise  than  by 
proving  the  existence  of  a  commission.  Still,  the  commis 
sion  is  not  necessarily  the  appointment,  though  conclusive 
evidence  of  it. 

But  at  what  stage  does  it  amount  to  this  conclusive  evi 
dence  ? 

The  answer  to  this  question  seems  an  obvious  one.  The 
appointment,  being  the  sole  act  of  the  president,  must  be  com 
pletely  evidenced  when  it  is  shown  that  he  has  done  every 
thing  to  be  performed  by  him. 

Should  the  commission,  instead  of  being  evidence  of  an 
appointment,  even  be  considered  as  constituting  the  appoint 
ment  itself, —  still,  it  would  be  made  when  the  last  act  to 
be  clone  by  the  president  was  performed,  or,  at  furthest,  when 
the  commission  was  complete. 

The  last  act  to  be  done  by  the  president  is  the  signature  of 
the  commission.  He  has  then  acted  on  the  advice  and  consent 
of  the  senate  to  his  own  nomination.  The  time  for  delibera 
tion  has  then  passed.  He  has  decided.  His  judgment,  on 
the  advice  and  consent  of  the  senate  concurring  with  his  nom 
ination,  has  been  made,  and  the  officer  is  appointed.  This  ap- 


320  THE  POLITICAL  AND  ECONOMIC 

pointment  is  evidenced  by  an  open,  unequivocal  act ;  and  being 
the  last  act  required  from  the  person  making  it,  necessarily 
excludes  the  idea  of  its  being,  so  far  as  respects  the  appoint 
ment,  an  inchoate  and  incomplete  transaction. 

Some  point  of  time  must  be  taken  when  the  power  of  the 
executive  over  an  officer  not  removable  at  his  will  must  cease. 
That  point  of  time  must  be  when  the  constitutional  power  of 
appointment  has  been  exercised.  And  this  power  has  been  ex 
ercised  when  the  last  act  required  from  the  person  possessing 
the  power  has  been  performed.  This  last  act  is  the  signature 
of  the  commission.  This  idea  seems  to  have  prevailed  with 
the  legislature  when  the  act  passed  converting  the  department 
of  foreign  affairs  into  the  department  of  state.  By  that  act 
it  is  enacted,  that  the  secretary  of  state  shall  keep  the  seal 
of  the  United  States,  "  and  shall  make  out  and  record,  and 
shall  affix  the  said  seal  to,  all  civil  commissions  to  officers 
of  the  United  States  to  be  appointed  by  the  president;  "  "  pro 
vided,  that  the  said  seal  shall  not  be  affixed  to  any  commission 
before  the  same  shall  have  been  signed  by  the  president  of 
the  United  States ;  nor  to  any  other  instrument  or  act  without 
the  special  warrant  of  the  president  therefor." 

The  signature  is  a  warrant  for  affixing  the  great  seal  to 
the  commission ;  and  the  great  seal  is  only  to  be  affixed  to  an 
instrument  which  is  complete.  It  attests,  by  an  act  supposed 
to  be  of  public  notoriety,  the  verity  of  the  presidential  signa 
ture. 

It  is  never  to  be  affixed  till  the  commission  is  signed,  be 
cause  the  signature,  which  gives  force  and  effect  to  the  com 
mission,  is  conclusive  evidence  that  the  appointment  is  made. 

The  commission  being  signed,  the  subsequent  duty  of  the 
secretary  of  state  is  prescribed  by  law,  and  not  to  be  guided 
by  the  will  of  the  president.  He  is  to  affix  the  seal  of  the 
United  States  to  the  commission,  and  is  to  record  it. 

This  is  not  a  proceeding  which  may  be  varied,  if  the  judg 
ment  of  the  executive  shall  suggest  one  more  eligible ;  but  is 
a  precise  course  accurately  marked  out  by  law,  and  is  to  be 
strictly  pursued.  It  is  the  duty  of  the  secretary  of  state  to 
conform  to  the  law;  and  in  this  he  is  an  officer  of  the  United 
States,  bound  to  obey  the  laws.  He  acts,  in  this  respect, 
as  has  been  very  properly  stated  at  the  bar,  under  the  authority 
of  law,  and  not  by  the  instructions  of  the  president.  It  is  a 


DOCTRINES  OF  JOHN  MARSHALL          321 

ministerial  act  which  the  law  enjoins  on  a  particular  officer 
for  a  particular  purpose. 

If  it  should  be  supposed  that  the  solemnity  of  affixing  the 
seal  is  necessary  not  only  to  the  validity  of  the  commission, 
but  even  to  the  completion  of  an  appointment,  still,  when  the 
seal  is  affixed  the  appointment  is  made  and  the  commission 
is  valid.  No  other  solemnity  is  required  by  law ;  no  other  act 
is  to  be  performed  on  the  part  of  the  government.  All  that 
the  executive  can  do  to  invest  the  person  with  his  office  is 
done ;  and  unless  the  appointment  be  then  made,  the  executive 
cannot  make  one  without  the  cooperation  of  others. 

After  searching  anxiously  for  the  principles  on  which  a 
contrary  opinion  may  be  supported,  none  have  been  found 
which  appear  of  sufficient  force  to  maintain  the  opposite  doc 
trine. 

Such  as  the  imagination  of  the  court  could  suggest  have 
been  very  deliberately  examined,  and  after  allowing  them  all 
the  weight  which  it  appears  possible  to  give  them,  they  do  not 
shake  the  opinion  which  has  been  formed. 

In  considering  this  question,  it  has  been  conjectured  that 
the  commission  may  have  been  assimilated  to  a  deed,  to  the 
validity  of  which  delivery  is  essential. 

This  idea  is  founded  on  the  supposition  that  the  commission 
is  not  merely  evidence  o'f  an  appointment,  but  is  itself  the 
actual  appointment ;  a  supposition  by  no  means  unquestionable. 
But  for  the  purpose  of  examining  this  objection  fairly,  let  it  be 
conceded  that  the  principle  claimed  for  its  support  is  es 
tablished. 

The  appointment  being,  under  the  constitution,  to  be  made 
by  the  president  personally,  the  delivery  of  the  deed  of  ap 
pointment,  if  necessary  to  its  completion,  must  be  made  by 
the  president  also.  It  is  not  necessary  that  the  delivery  should 
be  made  personally  to  the  grantee  of  the  office;  it  never  is 
so  made.  The  law  would  seem  to  contemplate  that  it  should 
be  made  to  the  secretary  of  state,  since  it  directs  the  secre 
tary  to  affix  the  seal  to  the  commission  after  it  shall  have 
been  signed  by  the  president.  If  then,  the  act  of  delivery 
be  necessary  to  give  validity  to  the  commission,  it  has  been 
delivered  when  executed  and  given  to  the  secretary  for  the 
purpose  of  being  sealed,  recorded,  and  transmitted  to  the 
party. 


322  THE  POLITICAL  AND  ECONOMIC 

But  in  all  cases  of  letters  patent  certain  solemnities  are 
required  by  law,  which  solemnities  are  the  evidences  of  the 
validity  of  the  instrument.  A  formal  delivery  to  the  person 
is  not  among  them.  In  cases  of  commissions,  the  sign  manual 
of  the  president,  and  the  seal  of  the  United  States,  are  those 
solemnities.  This  objection,  therefore,  does  not  touch  the 
case. 

It  has  also  occurred  as  possible,  and  barely  possible,  that 
the  transmission  of  the  commission,  and  the  acceptance  thereof, 
might  be  deemed  necessary  to  complete  the  right  of  the  plaintiff. 

The  transmission  of  the  commission  is  a  practice  directed 
by  convenience,  but  not  by  law.  It  cannot,  therefore,  be  neces 
sary  to  constitute  the  appointment,  which  must  precede  it, 
and  which  is  the  mere  act  of  the  president.  If  the  executive 
required  that  every  person  appointed  to  an  office  should  him 
self  take  means  to  procure  his  commission,  the  appointment 
would  not  be  the  less  valid  on  that  account.  The  appointment 
is  the  sole  act  of  the  president;  the  transmission  of  the  com 
mission  is  the  sole  act  of  the  officer  to  whom  that  duty  is  as 
signed,  and  may  be  accelerated  or  retarded  by  circumstances 
which  can  have  no  influence  on  the  appointment.  A  com 
mission  is  transmitted  to  a  person  already  appointed;  not  to 
a  person  to  be  appointed  or  not,  as  the  letter  enclosing  the 
commission  should  happen  to  get  into  the  post-office  and 
reach  him  in  safety,  or  to  miscarry. 

It  may  have  some  tendency  to  elucidate  this  point,  to  inquire 
whether  the  possession  of  the  original  commission  be  indis 
pensably  necessary  to  authorize  a  person,  appointed  to  any 
office,  to  perform  the  duties  of  that  office.  If  it  was  neces 
sary,  then  a  loss  of  commission  would  lose  the  office.  Not 
only  negligence,  but  accident  or  fraud,  fire  or  theft,  might  de 
prive  an  individual  of  his  office.  In  such  a  case,  I  presume,  it 
could  not  be  doubted  but  that  a  copy  from  the  record  of  the 
office  of  the  secretary  of  state  would  be,  to  every  intent  and 
purpose,  equal  to  the  original.  The  act  of  congress  has  ex 
pressly  made  it  so.  To  give  that  copy  validity,  it  would  not 
be  necessary  to  prove  that  the  original  had  been  transmitted 
and  afterwards  lost.  The  copy  would  be  complete  evidence 
that  the  original  had  existed,  and  that  the  appointment  had 
been  made,  but  not  that  the  original  had  been  transmitted. 
If,  indeed,  it  should  appear  that  the  original  had  been  mislaid 


DOCTRINES  OF  JOHN  MARSHALL          323 

in  the  office  of  state,  that  circumstance  would  not  affect  the 
operation  of  the  copy.  When  all  the  requisites  have  been  per 
formed  which  authorize  a  recording  officer  to  record  any  in 
strument  whatever,  and  the  order  for  that  purpose  has  been 
given,  the  instrument  is,  in  law,  considered  as  recorded,  al 
though  the  manual  labor  of  inserting  it  in  a  book  kept  for 
that  purpose  may  not  have  been  performed. 

In  the  case  of  commissions,  the  law  orders  the  secretary 
of  state  to  record  them.  When,  therefore,  they  are  signed  and 
sealed,  the  order  for  their  being  recorded  is  given ;  and  whether 
inserted  in  the  book  or  not,  they  are,  in  law,  recorded. 

A  copy  of  this  record  is  declared  equal  to  the  original,  and 
the  fees  to  be  paid  by  a  person  requiring  a  copy  are  ascer 
tained  by  law.  Can  a  keeper  of  a  public  record  erase  therefrom 
a  commission  which  has  been  recorded?  Or  can  he  refuse  a 
copy  thereof  to  a  person  demanding  it  on  the  terms  prescribed 
by  law  ? 

Such  a  copy  would,  equally  with  the  original,  authorize  the 
justice  of  the  peace  to  proceed  in  the  performance  of  his  duty, 
because  it  would,  equally  with  the  original,  attest  his  appoint 
ment. 

If  the  transmission  of  a  commission  be  not  considered  as 
necessary  to  give  validity  to  an  appointment,  still  less  is  its 
acceptance.  The  appointment  is  the  sole  act  of  the  president ; 
the  acceptance  is  the  sole  act  of  the  officer,  and  is,  in  plain 
common  sense,  posterior  to  the  appointment.  As  he  may  re 
sign,  so  may  he  refuse  to  accept;  but  neither  the  one  nor 
the  other  is  capable  of  rendering  the  appointment  a  nonen 
tity. 

That  this  is  the  understanding  of  the  government  is  apparent 
from  the  whole  tenor  of  its  conduct. 

A  commission  bears  date,  and  the  salary  of  the  officer  com 
mences,  from  his  appointment;  not  from  the  transmission  or 
acceptance  of  his  commission.  When  a  person  appointed  to 
any  office  refuses  to  accept  that  office,  the  successor  is  nomi 
nated  in  the  place  of  the  person  who  has  declined  to  accept,  and 
not  in  place  of  the  person  who  had  been  previously  in  office, 
and  had  created  the  original. 

It  is,  therefore,  decidedly  the  opinion  of  the  court,  that, 
when  a  commission  has  been  signed  by  the  president,  the  aj 
pointment  is  made ;  and  that  the  commission  is  complete  when 


324  THE  POLITICAL  AND  ECONOMIC 

the  seal  of  the  United  States  has  been  affixed  to  it  by  the 
secretary  of  state. 

When  an  officer  is  removable  at  the  will  of  the  executive, 
the  circumstance  which  completes  his  appointment  is  of  no 
concern ;  because  the  act  is  at  any  time  revocable ;  and  the  com 
mission  may  be  arrested,  if  still  in  the  office.  But  when  the 
officer  is  not  removable  at  the  will  of  the  executive,  the  ap 
pointment  is  not  revocable,  and  cannot  be  annulled.  It  has 
conferred  legal  rights  which  can  not  be  resumed. 

The  discretion  of  the  executive  is  to  be  exercised  until 
the  appointment  has  been  made.  But  having  once  made  the 
appointment,  his  power  over  the  office  is  terminated  in  all 
cases  where  by  law  the  officer  is  not  removable  by  him.  The 
right  to  the  office  is  then  in  the  person  appointed,  and  he 
has  the  absolute,  unconditional  power  of  accepting  or  re 
jecting  it. 

/      Mr.  Marbury,  then,  since  his  commission  was  signed  by  the 
\l  president,  and  sealed  by  the  secretary  of  state,  was  appointed ; 
\  and  as  the  law  creating  the  office  gave  the  officer  a  right  to 
|  mold  for  five  years,  independent  of  the  executive,  the  appoint 
ment  was  not  revocable,  but  vested  in  the  officer  legal  rights, 
which  are  protected  by  the  laws  of  his  country. 

To  withhold  his  commission,  therefore,  is  an  act  deemed  by 
the  court  not  warranted  by  law,  but  violative  of  a  vested  legal 
right. 

This  brings  us  to  the  second  inquiry ;  which  is, — 

2d.  If  he  has  a  right,  and  that  right  has  been  violated,  do 
the  laws  of  his  country  afford  him  a  remedy? 

The  very  essence  of  civil  liberty  certainly  consists  in  the 
right  of  every  individual  to  claim  the  protection  of  the  laws 
whenever  he  receives  an  injury.  One  of  the  first  duties  of 
government  is  to  afford  that  protection.  In  Great  Britain 
the  King  himself  is  sued  in  the  respectful  form  of  a  petition, 
and  he  never  fails  to  comply  with  the  judgment  of  his  court. 

In  the  third  volume  of  his  Commentaries,  page  23,  Black- 
stone  states  two  cases  in  which  a  remedy  is  afforded  by  mere 
operation  of  law. 

"  In  all  other  cases/'  he  says,  "  it  is  a  general  and  indisput 
able  rule,  that,  where  there  is  a  legal  right,  there  is  also  a 
legal  remedy  by  suit,  or  action  at  law,  whenever  that  right  is 
invaded." 


DOCTRINES  OF  JOHN  MARSHALL  325 

And  afterwards,  page  109  of  the  same  volume,  he  says,  "  I 
am  next  to  consider  such  injuries  as  are  cognizable  by  the 
courts  of  the  common  law.  And  herein  I  shall  for  the  present 
only  remark  that  all  possible  injuries  whatsoever,  that  did  not 
fall  within  the  exclusive  cognizance  of  either  the  ecclesias 
tical,  military,  or  maritime  tribunals,  are,  for  that  very  reason, 
within  the  cognizance  of  the  common-law  courts  of  justice; 
for  it  is  a  settled  and  invariable  principle  in  the  laws  of  Eng 
land  that  every  right  when  withheld  must  have  a  remedy, 
and  every  injury  its  proper  redress." 

The  government  of  the  United  States  has  been  emphatically 
termed  a  government  of  laws,  and  not  of  men.  It  will  cer 
tainly  cease  to  deserve  this  high  appellation,  if  the  laws  furnish 
no  remedy  for  the  violation  of  a  vested  legal  right. 

If  this  obloquy  is  to  be  cast  on  the  jurisprudence  of  our 
country,  it  must  arise  from  the  peculiar  character  of  the  case. 

It  behooves  us,  then,  to  inquire  whether  there  be  in  its 
composition  any  ingredient  which  shall  exempt  it  from  legal 
investigation,  or  exclude  the  injured  party  from  legal  re 
dress.  In  pursuing  this  inquiry,  the  first  question  which  pre 
sents  itself  is,  whether  this  can  be  arranged  with  that  class 
of  cases  which  come  under  the  description  of  damnum  absque 
injuria,  a  loss  without  an  injury. 

This  description  of  cases  never  has  been  considered,  and  it 
is  believed  never  can  be  considered,  as  comprehending  offices 
of  trust,  of  honor,  or  of  profit.  The  office  of  justice  of  peace 
in  the  District  of  Columbia  is  such  an  office;  it  is  therefore 
worthy  of  the  attention  and  guardianship  of  the  laws.  It 
has  received  that  attention  and  guardianship.  It  has  been 
created  by  special  act  of  congress,  and  has  been  secured,  so 
far  as  the  laws  can  give  security,  to  the  person  appointed  to 
fill  it,  for  five  years.  It  is  not,  then,  on  account  of  the  worth- 
lessness  of  the  thing  pursued,  that  the  injured  party  can  be  al 
leged  to  be  without  remedy. 

Is  it  in  the  nature  of  the  transaction?  Is  the  act  of  de 
livering  or  withholding  a  commission  to  be  considered  as  a 
mere  political  act,  belonging  to  the  executive  department  alone, 
for  the  performance  of  which  entire  confidence  is  placed  by  our 
constitution  in  the  supreme  executive ;  and  for  any  misconduct 
respecting  which,  the  injured  individual  has  no  remedy? 

That  there  may  be  such  cases  is  not  to  be  questioned;  but 


326  THE  POLITICAL  AND  ECONOMIC 

that  every  act  of  duty,  to  be  performed  in  any  of  the  great 
departments  of  government,  constitute  such  a  case,,  is  not  to 
be  admitted. 

By  the  act  concerning  invalids,  passed  in  June,  1794,  vol.  3, 
p.  112,  the  Secretary  of  War  is  ordered  to  place  on  the  pen 
sion  list  all  persons  whose  names  are  contained  in  a  report 
previously  made  by  him  to  congress.  If  he  should  refuse  to 
do  so,  would  the  wounded  veteran  be  without  remedy?  Is 
it  to  be  contended  that  where  the  law  in  precise  term,  directs 
the  performance  of  an  act,  in  which  an  individual  is  interested, 
the  law  is  incapable  of  securing  obedience  to  its  mandate?  Is 
it  on  account  of  the  character  of  the  person  against  whom 
the  complaint  is  made?  Is  it  to  be  contended  that  the  heads 
of  departments  are  not  amenable  to  the  laws  of  their  country? 

Whatever  the  practice  on  particular  occasions  may  be,  the 
theory  of  this  principle  will  certainly  never  be  maintained. 
No  act  of  the  legislature  confers  so  extraordinary  a  privilege, 
nor  can  it  derive -countenance  from  the  doctrines  of  the  com 
mon  law.  After  stating  that  personal  injury  from  the  king  to 
a  subject  is  presumed  to  be  impossible,  Blackstone,  vol.  3,  p. 
255,  says,  "  but  injuries  to  the  rights  of  property  can  scarcely 
be  committed  by  the  crown  without  the  intervention  of  its 
officers;  for  whom  the  law,  in  matters  of  right,  entertains 
no  respect  or  delicacy:  but  furnishes  various  methods  of  de 
tecting  the  errors  and  misconduct  of  those  agents,  by  whom  the 
king  has  been  deceived  and  induced  to  do  a  temporary  in 
justice." 

By  the  act  passed  in  1796,  authorizing  the  sale  of  the  lands 
above  the  mouth  of  Kentucky  river  (vol.  3,  p.  299),  the 
purchaser,  on  paying  his  purchase  money,  becomes  completely 
entitled  to  the  property  purchased;  and  on  producing  to  the 
Secretary  of  State  the  receipt  of  the  treasurer  upon  a  certi 
ficate  required  by  the  law,  the  President  of  the  United  States 
is  authorized  to  grant  him  a  patent.  It  is  further  enacted  that 
all  patents  shall  be  countersigned  by  the  Secretary  of  State, 
and  recorded  in  his  office.  If  the  Secretary  of  State  should 
choose  to  withhold  this  patent ;  or,  the  patent  being  lost,  should 
refuse  a  copy  of  it ;  can  it  be  imagined  that  the  law  furnishes  to 
the  injured  person  no  remedy? 

It  is  not  believed  that  any  person  whatever  would  attempt 
to  maintain  such  a  proposition. 


DOCTRINES  OF  JOHN  MARSHALL          327 

It  follows,  then,  that  the  question,  whether  the  legality  of 
an  act  of  the  head  of  a  department  be  examinable  in  a  court 
of  justice  or  not,  must  always  depend  on  the  nature  of  that 
act. 

If  some  acts  be  examinable,  and  others  not,  there  must  be 
some  rule  of  law  to  guide  the  court  in  the  exercise  of  its 
jurisdiction. 

In  some  instances  there  may  be  difficulty  in  applying  the 
rule  to  particular  cases ;  but  there  cannot,  it  is  believed,  be  much 
difficulty  in  laying  down  the  rule. 

By  the  constitution  of  the  United  States,  the  President  is 
invested  with  certain  important  political  powers,  in  the  exer 
cise  of  which  he  is  to  use  his  own  discretion,  and  is  account 
able  only  to  his  country  in  his  political  character  and  to  his 
own  conscience.  To  aid  him  in  the  performance  of  these 
duties,  he  is  authorized  to  appoint  certain  officers,  who  act 
by  his  authority,  and  in  conformity  with  his  orders. 

In  such  cases,  their  acts  are  his  acts;  and  whatever  opinion 
may  be  entertained  of  the  manner  in  which  executive  dis 
cretion  may  be  used,  still  there  exists,  and  can  exist,  no  power 
to  control  that  discretion.  The  subjects  are  political.  They 
respect  the  nation,  not  individual  rights,  and  being  intrusted 
to  the  executive,  the  decision  of  the  executive  is  conclusive. 
The  application  of  this  remark  will  be  perceived  by  adverting 
to  the  act  of  congress  for  establishing  the  department  of  for 
eign  affairs.  This  officer,  as  his  duties  were  prescribed  by  that 
act,  is  to  conform  precisely  to  the  will  of  the  President.  He  is 
the  mere  organ  by  whom  that  will  is  communicated.  The 
acts  of  such  an  officer,  as  an  officer,  can  never  be  examinable 
by  the  courts. 

But  when  the  legislature  proceeds  to  impose  on  that  officer 
other  duties ;  when  he  is  directed  peremptorily  to  perform  cer 
tain  acts ;  when  the  rights  of  individuals  are  dependent  on  the 
performance  of  those  acts;  he  is  so  far  the  officer  of  the  law; 
is  amenable  to  the  laws  for  his  conduct;  and  cannot  at  his 
discretion  sport  away  the  vested  rights  of  others. 

The  conclusion  from  this  reasoning  is,  that  where  the  heads 
of  departments  are  the  political  or  confidential  agents  of  the 
executive,  merely  to  execute  the  will  of  the  President,  or 
rather  to  act  in  cases  in  which  the  executive  possesses  a  con 
stitutional  or  legal  discretion,  nothing  can  be  more  perfectly 


328  THE  POLITICAL  AND  ECONOMIC 

clear  then  that  their  acts  are  only  politically  examinable.  But 
where  a  specific  duty  is  assigned  by  law,  and  individual  rights 
depend  upon  the  performance  of  that  duty,  it  seems  equally 
clear  that  the  individual  who  considers  himself  injured, 
has  a  right  to  resort  to  the  laws  of  his  country  for  a  rem 
edy. 

If  this  be  the  rule,  let  us  inquire  how  it  applies  to  the  case 
under  the  consideration  of  the  court. 

The  power  of  nominating  to  the  senate,  and  the  power  of 
appointing  the  person  nominated,  are  political  powers,  to  be 
exercised  by  the  President  according  to  his  own  discretion. 
When  he  has  made  an  appointment,  he  has  exercised  his  whole 
power,  and  his  discretion  has  been  completely  applied  to  the 
case.  If,  by  law,  the  officer  be  removable  at  the  will  of  the 
President,  then  a  new  appointment  may  be  immediately  made, 
and  the  rights  of  the  officer  are  terminated.  But  as  a  fact 
which  has  existed  cannot  be  made  never  to  have  existed,  the 
appointment  cannot  be  annihilated;  and  consequently,  if  the 
officer  is  by  law  not  removable  at  the  will  of  the  President, 
the  rights  he  has  acquired  are  protected  by  the  law,  and  are 
not  resumable  by  the  President.  They  can  not  be  extinguished 
by  executive  authority,  and  he  has  the  privilege  of  asserting 
them  in  like  manner  as  if  they  had  been  derived  from  any 
other  source. 

The  question  whether  a  right  has  vested  or  not,  is,  in  its 
nature,  judicial,  and  must  be  tried  by  the  judicial  authority. 
If,  for  example,  Mr.  Marbury  had  taken  the  oaths  of  a  magis 
trate,  and  proceeded  to  act  as  one,  in  consequence  of 
which  a  suit  had  been  instituted  against  him,  in  which  his 
defense  had  depended  on  his  being  a  magistrate,  the  validity 
of  his  appointment  must  have  been  determined  by  judicial 
authority. 

So,  if  he  conceives  that,  by  virtue  of  his  appointment,  he 
has  a  legal  right  either  to  the  commission  which  has  been  made 
out  for  him,  or  to  a  copy  of  that  commission,  it  is  equally  a 
question  examinable  in  a  court,  and  the  decision  of  the  court 
upon  it  must  depend  on  the  opinion  entertained  of  his  ap 
pointment. 

That  question  has  been  discussed,  and  the  opinion  is,  that  the 
latest  point  of  time  which  can  be  taken  as  that  at  which  the 
appointment  was  complete,  and  evidenced,  was  when,  after  the 


DOCTRINES  OF  JOHN  MARSHALL          329 

signature  of  the  President,  the  seal  of  the  United  States  was 
affixed  to  the  commission. 

It  is,  then,  the  opinion  of  the  Court. 

ist.  That  by  signing  the  commission  of  Mr.  Marbury,  the 
President  of  the  United  States  appointed  him  a  justice  of  the 
peace  for  the  county  of  Washington,  in  the  District  of  Colum 
bia;  and  that  the  seal  of  the  United  States,  affixed  thereto 
by  the  Secretary  of  State,  is  conclusive  testimony  of  the  verity 
of  the  signature,  and  of  the  completion  of  the  appointment; 
and  that  the  appointment  conferred  on  him  a  legal  right  to  the 
office  for  the  space  of  five  years. 

2d.  That,  having  this  legal  title  to  the  office,  he  has  a 
consequent  right  to  the  commission ;  a  refusal  to  deliver  which 
is  a  plain  violation  of  that  right,  for  which  the  laws  of  his 
country  afford  him  a  remedy. 

It  remains  to  be  inquired  whether, 

3d.  He  is  entitled  to  the  remedy  for  which  he  applies.  This 
depends  on, 

i st.  The  nature  of  the  writ  applied  for;  and, 

2d.  The  power  of  tfiis  court. 

ist.  The  nature  of  the  writ. 

Blackstone,  in  the  3d  volume  of  his  Commentaries,  page^ 
1 10,  defines  a  mandamus  to  be  "  a  command  issuing  in  the 
king's  name  from  the  court  of  king's  bench,  and  directed  to  any 
person,  corporation,  or  inferior  court  of  judicature  within  the 
king's  dominions,  requiring  them  to  do  some  particular  thing 
therein  specified,  which  appertains  to  their  office  and  duty, 
and  which  the  court  of  king's  bench  has  previously  determined, 
or  at  least  supposes,  to  be  consonant  to  right  and  justice." 

Lord  Mansfield,  in  3  Burrow,  1266,  in  the  case  of  The  King 
v.  Baker  et  al.,  states,  with  much  precision  and  explicitness, 
the  cases  in  which  this  writ  may  be  used. 

"  Whenever,"  says  that  very  able  judge,  "  there  is  a  right 
to  execute  an  office,  perform  a  service,  or  exercise  a  franchise, 
(more  especially  if  it  be  in  a  matter  of  public  concern,  or  at 
tended  with  profit,)  and  a  person  is  kept  out  of  possession,  or 
dispossessed  of  such  right,  and  has  no  other  specific  legal 
remedy,  this  court  ought  to  assist  by  mandamus,  upon  reasons 
of  justice,  as  the  writ  expresses,  and  upon  reasons  of  public 
policy,  to  preserve  peace,  order  and  good  government."  In 
the  same  case  he  says,  "  this  writ  ought  to  be  used  upon  all 


330  THE  POLITICAL  AND  ECONOMIC 

occasions  where  the  law  has  established  no  specific  remedy, 
and  where  in  justice  and  good  government  there  ought  to  be 
one." 

In  addition  to  the  authorities  now  particularly  cited,  many 
others  were  relied  on  at  the  bar,  which  show  how  far  the 
practice  has  conformed  to  the  general  doctrines  that  have  been 
just  quoted. 

This  writ,  if  awarded,  would  be  directed  to  an  officer  of 
government,  and  its  mandate  to  him  would  be,  to  use  the 
words  of  Blackstone,  "  to  do  a  particular  thing  therein  specified, 
which  appertains  to  his  office  and  duty,  and  which  the  court 
has  previously  determined,  or  at  least  supposes,  to  be  consonant 
to  right  and  justice."  Or,  in  the  words  of  Lord  Mansfield, 
the  applicant,  in  this  case,  has  a  right  to  execute  an  office  of 
public  concern,  and  is  kept  out  of  possession  of  that  right. 

These  circumstances  certainly  concur  in  this  case. 

Still,  to  render  the  mandamus  a  proper  remedy,  the  officer 
to  whom  it  is  to  be  directed,  must  be  one  to  whom,  on  legal 
principles,  such  writ  may  be  directed;  and  the  person  apply 
ing  for  it  must  be  without  any  other  specific  and  legal  rem 
edy. 

ist.  With  respect  to  the  officer  to  whom  it  would  be  directed. 
The  intimate  political  relation  subsisting  between  the  Presi 
dent  of  the  United  States  and  the  heads  of  departments,  neces 
sarily  renders  any  legal  investigation  of  the  acts  of  one  of 
those  high  officers  peculiarly  irksome,  as  well  as  delicate;  and 
excites  some  hesitation  with  respect  to  the  propriety  of  entering 
into  such  investigation.  Impressions  are  often  received  with 
out  much  reflection  or  examination,  and  it  is  not  wonderful 
that  in  such  a  case  as  this  the  assertion,  by  an  individual,  of  his 
legal  claims  in  a  court  of  justice,  to  which  claims  it  is  the 
duty  of  that  court  to  attend,  should  at  first  view  be  considered 
by  some,  as  an  attempt  to  intrude  into  the  cabinet,  and  to  in 
termeddle  with  the  prerogatives  of  the  executive. 

It  is  scarcely  necessary  for  the  court  to  disclaim  all  pre 
tensions  of  such  jurisdiction.  An  extravagance,  so  absurd 
and  excessive,  could  not  have  been  entertained  for  a  moment. 
The  province  of  the  court  is,  solely,  to  decide  on  the  rights 
of  individuals,  not  to  inquire  how  the  executive,  or  executive 
officers,  perform  duties  in  which  they  have  a  discretion.  Ques 
tions  in  their  nature  political,  or  which  are,  by  the  constitution 


DOCTRINES  OF  JOHN  MARSHALL  331 

and  laws,  submitted  to  the  executive,  can  never  be  made  in 
this  court. 

But,  if  this  be  not  such  a  question;  if,  so  far  from  being 
an  intrusion  into  the  secrets  of  the  cabinet,  it  respects  a  paper 
which,  according  to  law,  is  upon  record,  and  to  a  copy  of  which 
the  law  gives  a  right,  on  the  payment  of  ten  cents ;  if  it  be  no 
intermeddling  with  a  subject  over  which  the  executive  can  be 
considered  as  having  exercised  any  control;  what  is  there  in 
the  exalted  station  of  the  officer,  which  shall  bar  a  citizen  from 
asserting,  in  a  court  of  justice,  his  legal  rights,  or  shall  forbid 
a  court  to  listen  to  the  claim,  or  to  issue  a  mandamus  directing 
the  performance  of  a  duty,  not  depending  on  executive  dis 
cretion,  but  on  particular  acts  of  congress,  and  the  general 
principles  of  law? 

If  one  of  the  heads  of  departments  commits  any  illegal  act, 
under  colour  of  his  office,  by  which  an  individual  sustains  an 
injury,  it  cannot  be  pretended  that  his  office  alone  exempts 
him  from  being  sued  in  the  ordinary  mode  of  proceeding,  and 
being  compelled  to  obey  the  judgment  of  the  law.  How,  then, 
can  his  office  exempt  him  from  this  particular  mode  of  decid 
ing  on  the  legality  of  his  conduct,  if  the  case  be  such  a  case 
as  would,  were  any  other  individual  the  party  complained  of, 
authorize  the  process? 

It  is  not  by  the  office  of  the  person  to  whom  the  writ  is 
directed,  but  the  nature  of  the  thing  to  be  done,  that  the  pro 
priety  or  impropriety  of  issuing  a  mandamus  is  to  be  deter 
mined.  Where  the  head  of  a  department  acts  in  a  case,  in 
which  executive  discretion  is  to  be  exercised;  in  which  he  is 
the  mere  organ  of  executive  will ;  it  is  again  repeated,  that  any 
application  to  a  court  to  control,  in  any  respect,  his  conduct 
would  be  rejected  without  hesitation. 

But  where  he  is  directed  by  law  to  do  a  certain  act  affecting 
the  absolute  rights  of  individuals,  in  the  performance  of 
which  he  is  not  placed  under  the  particular  direction  of  the 
President,  and  the  performance  of  which  the  President  can 
not  lawfully  forbid,  and  therefore  is  never  presumed  to  have 
forbidden ;  as  for  example,  to  record  a  commission,  or  a  pat 
ent  for  land,  which  has  received  all  the  legal  solemnities;  or 
to  give  a  copy  of  such  record ;  in  such  cases,  it  is  not  perceived 
on  what  ground  the  courts  of  the  country  are  further  excused 
from  the  duty  of  giving  judgment  that  right  be  done  to  an 


332  THE  POLITICAL  AND  ECONOMIC 

injured  individual,  than  if  the  same  services  were  to  be  per 
formed  by  a  person  not  the  head  of  a  department. 

This  opinion  seems  not  now,  for  the  first  time,  to  be  taken 
up  in  this  country. 

It  must  be  well  recollected  that  in  1792,  an  act  passed  di 
recting  the  Secretary  of  War  to  place  on  the  pension  list  such 
disabled  officers  and  soldiers  as  should  be  reported  to  him, 
by  the  circuit  courts,  which  act,  so  far  as  the  duty  was  imposed 
on  the  courts,  was  deemed  unconstitutional;  but  some  of  the 
judges  thinking  that  the  law  might  be  executed  by  them  in  the 
character  of  commissioners,  proceeded  to  act,  and  to  report  in 
that  character. 

This  law  being  deemed  unconstitutional  at  the  circuits  was 
repealed,  and  a  different  system  was  established ;  but  the  ques 
tion  whether  those  persons  who  had  been  reported  by  the 
judges,  as  commissioners,  were  entitled,  in  consequence  of  that 
report,  to  be  placed  on  the  pension  list,  was  a  legal  question, 
properly  determinable  in  the  courts,  although  the  act  of  placing 
such  pensions  on  the  list  was  to  be  performed  by  the  head 
of  a  department. 

That  this  question  might  be  properly  settled,  congress  passed 
an  act  in  February,  1793,  making  it  the  duty  of  the  Secretary 
of  War,  in  conjunction  with  the  attorney  general,  to  take  such 
measures  as  might  be  necessary  to  obtain  an  adjudication  of 
the  Supreme  Court  of  the  United  States  on  the  validity  of  any 
such  rights,  claimed  under  the  act  aforesaid. 

After  the  passage  of  this  act,  a  mandamus  was  moved  for, 
to  be  directed  to  the  Secretary  of  War,  commanding  him  to 
place  on  the  pension  list,  a  person  stating  himself  to  be  on  the 
report  of  the  judges. 

There  is,  therefore,  much  reason  to  believe,  that  this  mode 
of  trying  the  legal  right  of  the  complainant  was  deemed  by  the 
head  of  a  department,  and  by  the  highest  law  officer  of  the 
United  States,  the  most  proper  which  could  be  selected  for 
the  purpose. 

When  the  subject  was  brought  before  the  court,  the  de 
cision  was,  not  that  a  mandamus  would  not  lie  to  the  head  of 
a  department  directing  him  to  perform  an  act,  enjoined  by  law, 
in  the  performance  of  which  an  individual  had  a  vested  in 
terest;  but  that  a  mandamus  ought  not  to  issue  in  that  case; 


DOCTRINES  OF  JOHN  MARSHALL          333 

the  decision  necessarily  to  be  made  of  the  report  of  the  com 
missioners  did  not  confer  on  the  applicant  a  legal  right. 

The  judgment,  in  that  case,  is  understood  to  have  decided 
the  merits  of  all  claims  of  that  description ;  and  the  persons,  on 
the  report  of  the  commissioners,  found  it  necessary  to  pursue 
the  mode  prescribed  by  the  law  subsequent  to  that  which  had 
been  deemed  unconstitutional,  in  order  to  place  themselves 
on  the  pension  list. 

The  doctrine,  therefore,  now  advanced,  is  by  no  means  a 
novel  one. 

It  is  true  that  the  mandamus,  now  moved  for,  is  not  for 
the  performance  of  an  act  expressly  enjoined  by  the  stat 
ute. 

It  is  to  deliver  a  commission;  on  which  subject  the  acts  of 
congress  are  silent.  This  difference  is  not  considered  as  af 
fecting  the  case.  It  has  already  been  stated  that  the  applicant 
has,  to  that  commission  a  vested  legal  right,  of  which  the 
executive  cannot  deprive  him.  He  has  been  appointed  to  an 
office,  from  which  he  is  not  removable  at  the  will  of  the  ex 
ecutive;  and  being  so  appointed,  he  has  a  right  to  the  com 
mission  which  the  secretary  has  received  from  the  President 
for  his  use.  The  act  of  congress  does  not  indeed  order  the 
Secretary  of  State  to  send  it  to  him,  but  it  is  placed  in  his 
hands  for  the  person  entitled  to  it ;  and  cannot  be  more  lawfully 
withheld  by  him  than  by  any  other  person. 

It  was  at  first  doubted  whether  the  action  of  detinue  was  not 
a  specific  legal  remedy  for  the  commission  which  has  been 
withheld  from  Mr.  Marbury;  in  which  case  a  mandamus  would 
be  improper.  But  this  doubt  has  yielded  to  the  consideration 
that  the  judgment  in  detinue  is  for  the  thing  itself,  or  its 
value.  The  value  of  a  public  office  not  to  be  sold  is  incapable 
of  being  ascertained ;  and  the  applicant  has  a  right  to  the  of 
fice  itself,  or  to  nothing.  He  will  obtain  the  office  by  obtaining 
the  commission,  or  a  copy  of  it  from  the  record. 

This,  then,  is  a  plain  case  for  a  mandamus,  either  to  deliver 
the  commission,  or  a  copy  of  it  from  the  record;  and  it  only 
remains  to  be  inquired, 

Whether  it  can  issue  from  this  court. 

The  act  to  establish  the  judicial  courts  of  the  United  States 
authorizes  the  Supreme  Court  "  to  issue  writs  of  mandamus 


334  THE  POLITICAL  AND  ECONOMIC 

in  cases  warranted  by  the  principles  and  usages  of  law,  to  any 
courts  appointed,  or  persons  holding  office,  under  the  authority 
of  the  United  States." 

The  Secretary  of  State,  being  a  person  holding  an  office 
under  the  authority  of  the  United  States,  is  precisely  within  the 
letter  of  the  description,  and  if  this  court  is  not  authorized  to 
issue  a  writ  of  mandamus  to  such  an  officer,  it  must  be  be 
cause  the  law  is  unconstitutional,  and  therefore  absolutely 
incapable  of  conferring  the  authority,  and  assigning  the  duties 
which  its  words  purport  to  confer  and  assign. 

The  constitution  vests  the  whole  judicial  power  of  the  United 
States  in  one  Supreme  Court,  and  such  inferior  courts  as  con 
gress  shall,  from  time  to  time,  ordain  and  establish.  This 
power  is  expressly  extended  to  all  cases  arising  under  the 
laws  of  the  United  States ;  and,  consequently,  in  some  form, 
may  be  exercised  over  the  present  case;  because  the  right 
claimed  is  given  by  a  law  of  the  United  States. 

In  the  distribution  of  this  power  it  is  declared  that  "  the 
Supreme  Court  shall  have  original  jurisdiction  in  all  cases  af 
fecting  ambassadors,  other  public  ministers  and  consuls,  and 
those  in  which  a  state  shall  be  a  party.  In  all  other  cases, 
the  Supreme  Court  shall  have  appellate  jurisdiction." 

It  has  been  insisted,  at  the  bar,  that  as  the  original  grant  of 
jurisdiction,  to  the  Supreme  and  inferior  courts,  is  general, 
and  the  clause,  assigning  original  jurisdiction  to  the  Supreme 
Court,  contains  no  negative  or  restrictive  words,  the  power  re 
mains  to  the  legislature,  to  assign  original  jurisdiction  to  that 
court  in  other  cases  than  those  specified  in  the  article  which 
has  been  recited;  provided  those  cases  belong  to  the  judicial 
power  of  the  United  States. 

If  it  had  been  intended  to  leave  it  in  the  discretion  of  the 
legislature  to  apportion  the  judicial  power  between  the  su 
preme  and  inferior  courts  according  to  the  will  of  that  body, 
it  would  certainly  have  been  useless  to  have  proceeded  further 
than  to  have  defined  the  judicial  power,  and  the  tribunals  in 
which  it  should  be  invested.  The  subsequent  part  of  the 
section  is  mere  surplusage,  is  entirely  without  meaning,  if 
such  is  to  be  the  construction.  If  congress  remains  at  liberty 
to  give  this  court  appellate  jurisdiction,  where  the  constitu 
tion  has  declared  their  jurisdiction  shall  be  original;  and 
original  jurisdiction  where  the  constitution  has  declared  it 


DOCTRINES  OF  JOHN  MARSHALL          335 

shall  be  appellate,  the  distribution  of  jurisdiction,  made  in  the 
constitution,  is  form  without  substance. 

Affirmative  words  are  often,  in  their  operation,  negative  of 
other  objects  than  those  affirmed ;  and  in  this  case,  a  negative 
or  exclusive  sense  must  be  given  to  them,  or  they  have  no 
operation  at  all. 

It  cannot  be  presumed  that  any  clause  in  the  constitution  is 
intended  to  be  without  effect ;  and,  therefore,  such  a  construc 
tion  is  inadmissible,  unless  the  words  require  it. 

If  the  solicitude  of  the  convention,  respecting  our  peace  with 
foreign  powers,  induced  a  provision  that  the  Supreme  Court 
should  take  original  jurisdiction  in  cases  which  might  be  sup 
posed  to  affect  them ;  yet  the  clause  would  have  proceeded  no 
further  than  to  provide  for  such  cases,  if  no  further  restric 
tion  on  the  powers  of  congress  had  been  intended.  That 
they  should  have  appellate  jurisdiction  in  all  other  cases,  with 
such  exceptions  as  congress  might  make,  is  no  restriction; 
unless  the  words  be  deemed  exclusive  of  original  jurisdiction. 

When  an  instrument  organizing  fundamentally  a  judicial 
system  divides  it  into  one  supreme,  and  so  many  inferior 
courts  as  the  legislature  may  ordain  and  establish;  then 
enumerates  its  powers,  and  proceeds  so  far  to  distribute  them, 
as  to  define  the  jurisdiction  of  the  Supreme  Court  by  declaring 
the  cases  in  which  it  shall  take  original  jurisdiction,  and  that 
in  others  it  shall  take  appellate  jurisdiction;  the  plain  import 
of  the  words  seems  to  be,  that  in  one  class  of  cases  its  juris 
diction  is  original,  and  not  appellate;  in  the  other  it  is  appel 
late,  and  not  original.  If  any  other  construction  would  render 
the  clause  inoperative,  that  is  an  additional  reason  for  re 
jecting  such  other  construction,  and  for  adhering  to  their  ob 
vious  meaning. 

To  enable  this  court  then,  to  issue  a  mandamus,  it  must  be 
shown  to  be  an  exercise  of  appellate  jurisdiction,  or  to  be  neces 
sary  to  enable  them  to  exercise  appellate  jurisdiction. 

It  has  been  stated  at  the  bar  that  the  appellate  jurisdiction 
may  be  exercised  in  a  variety  of  forms,  and  that  if  it  be  the 
will  of  the  legislature  that  a  mandamus  should  be  used  for 
that  purpose,  that  will  must  be  obeyed.  This  is  true,  yet  the 
jurisdiction  must  be  appellate,  not  original. 

It  is  the  essential  criterion  of  appellate  jurisdiction,  that 
it  revises  and  corrects  the  proceedings  in  a  cause  already  insti- 


336  THE  POLITICAL  AND  ECONOMIC 

tuted,  and  does  not  create  that  cause.  Although,  therefore,  a 
mandamus  may  be  directed  to  courts,  yet  to  issue  such  a  writ  to 
an  officer  for  the  delivery  of  a  paper,  is  in  effect  the  same 
as  to  sustain  an  original  action  for  that  paper,  and,  therefore, 
seems  not  to  belong  to  appellate,  but  to  original  jurisdiction. 
Neither  is  it  necessary  in  such  a  case  as  this,  to  enable  the 
court  to  exercise  its  appellate  jurisdiction. 

The  authority,  therefore,  given  to  the  Supreme  Court,  by 
the  act  establishing  the  judicial  courts  of  the  United  States, 
to  issue  writs  of  mandamus  to  public  officers,  appears  not  to 
be  warranted  by  the  constitution;  and  it  becomes  necessary 
to  inquire  whether  a  jurisdiction  so  conferred  can  be  exer 
cised. 

The  question,  whether  an  act,  repugnant  to  the  constitution, 
can  become  the  law  of  the  land,  is  a  question  deeply  interesting 
to  the  United  States;  but  happily,  not  of  an  intricacy  propor 
tioned  to  its  interest.  It  seems  only  necessary  to  recognize 
certain  principles,  supposed  to  have  been  long  and  well  es 
tablished,  to  decide  it. 

That  the  people  have  an  original  right,  to  establish  for 
their  future  government,  such  principles,  as,  in  their  opinion, 
shall  most  conduce  to  their  own  happiness  is  the  basis  on 
which  the  whole  American  fabric  has  been  erected.  The  exer 
cise  of  this  original  right  is  a  very  great  exertion;  nor  can  it, 
nor  ought  it,  to  be  frequently  repeated.  The  principles,  there 
fore,  so  established,  are  deemed  fundamental.  And  as  the 
authority  from  which  they  proceed  is  supreme,  and  can  sel 
dom  act,  they  are  designed  to  be  permanent. 

This  original  and  supreme  will  organizes  the  government, 
and  assigns  to  different  departments  their  respective  powers. 
It  may  either  stop  here,  or  establish  certain  limits  not  to  be 
transcended  by  those  departments. 

The  government  of  the  United  States  is  of  the  latter  de 
scription.  The  powers  of  the  legislature  are  defined  and 
limited;  and  that  those  limits  may  not  be  mistaken,  or  for 
gotten,  the  constitution  is  written.  To  what  purpose  are 
powers  limited,  and  to  what  purpose  is  that  limitation  com 
mitted  to  writing,  if  these  limits  may,  at  any  time,  be  passed 
by  those  intended  to  be  restrained?  The  distinction  between 
a  government  with  limited  and  unlimited  powers  is  abolished, 
if  those  limits  do  not  confine  the  persons  on  whom  they  are 


DOCTRINES  OF  JOHN  MARSHALL          337 

imposed,  and  if  acts  prohibited  and  acts  allowed,  are  of  equal 
obligation.  It  is  a  proposition  too  plain  to  be  contested,  that 
the  constitution  controls  any  legislative  act  repugnant  to  it; 
or,  that  the  legislature  may  alter  the  constitution  by  an  or 
dinary  act. 

Between  these  alternatives  there  is  no  middle  ground.  The 
constitution  is  either  a  superior  paramount  law,  unchangeable 
by  ordinary  means,  or  it  is  on  a  level  with  ordinary  legislative 
acts,  and,  like  other  acts,  is  alterable  when  the  legislature 
shall  please  to  alter  it. 

If  the  former  part  of  the  alternative  be  true,  then  a  legis 
lative  act  contrary  to  the  constitution  is  not  law :  if  the  latter 
part  be  true,  then  written  constitutions  are  absurd  attempts, 
on  the  part  of  the  people,  to  limit  a  power  in  its  own  nature 
illimitable. 

Certainly  all  those  who  have  framed  written  constitutions 
contemplate  them  as  forming  the  fundamental  and  paramount 
law  of  the  nation,  and,  consequently,  the  theory  of  every  such 
government  must  be,  that  an  act  of  the  legislature,  repugnant 
to  the  constitution,  is  void. 

This  theory  is  essentially  attached  to  a  written  constitution, 
and,  is  consequently,  to  be  considered  by  this  court,  as  one 
of  the  fundamental  principles  of  our  society.  It  is  not  there 
fore  to  be  lost  sight  of  in  the  further  consideration  of  this 
subject. 

If  an  act  of  the  legislature,  repugnant  to  the  constitution, 
is  void,  does  it,  notwithstanding  its  invalidity,  bind  the  courts, 
and  oblige  them  to  give  it  effect  ?  Or,  in  other  words,  though 
it  be  not'  law,  does  it  constitute  a  rule  as  operative  as  if  it 
was  a  law  ?  This  would  be  to  overthrow  in  fact  what  was  es 
tablished  in  theory ;  and  would  seem,  at  first  view,  an  absurdity 
too  gross  to  be  insisted  on.  It  shall,  however,  receive  a  more 
attentive  consideration. 

It  is  emphatically  the  province  and  duty  of  the  judicial  de 
partment  to  say  what  the  law  is.  Those  who  apply  the  rule 
to  particular  cases,  must  of  necessity  expound  and  interpret 
that  rule.  If  two  laws  conflict  with  each  other,  the  courts 
must  decide  on  the  operation  of  each. 

So  if  a  law  be  in  opposition  to  the  constitution;  if  both 
the  law  and  the  constitution  apply  to  a  particular  case,  so  that 
the  court  must  either  decide  that  case  conformably  to  the  law, 


338  THE  POLITICAL  AND  ECONOMIC 

disregarding  the  constitution;  or  conformably  to  the  consti 
tution,  disregarding  the  law;  the  court  must  determine  which 
of  these  conflicting  rules  governs  the  case.  This  is  of  the 
very  essence  of  judicial  duty. 

If,  then,  the  courts  are  to  regard  the  constitution,  and  the 
constitution  is  superior  to  any  ordinary  act  of  the  legislature, 
the  constitution  and  not  such  ordinary  act,  must  govern  the 
case  to  which  they  both  apply. 

Those,  then,  who  controvert  the  principle  that  the  consti 
tution  is  to  be  considered,  in  court,  as  a  paramount  law,  are 
reduced  to  the  necessity  of  maintaining  that  courts  must  close 
their  eyes  on  the  constitution,  and  see  only  the  law. 

This  doctrine  would  subvert  the  very  foundation  of  all 
written  constitutions.  It  would  declare  that  an  act  which, 
according  to  the  principles  and  theory  of  our  government,  is 
entirely  void,  is  yet,  in  practice,  completely  obligatory.  It 
would  declare  that  if  the  legislature  shall  do  what  is  ex 
pressly  forbidden,  such  act,  notwithstanding  the  express  pro 
hibition,  is  in  reality  effectual.  It  would  be  giving  to  the  legis 
lature  a  practical  and  real  omnipotence,  with  the  same  breath 
which  professes  to  restrict  their  powers  within  narrow  limits. 
It  is  prescribing  limits,  and  declaring  that  those  limits  may  be 
passed  at  pleasure. 

That  it  thus  reduces  to  nothing  what  we  have  deemed  the 
greatest  improvement  on  political  institutions,  a  written  con 
stitution,  would  of  itself  be  sufficient  in  America,  where  written 
constitutions  have  been  viewed  with  so  much  reverence,  for 
rejecting  the  construction.  But  the  peculiar  expressions  of 
the  constitution  of  the  United  States  furnish  additional  argu 
ments  in  favour  of  its  rejection. 

The  judicial  power  of  the  United  States  is  extended  to  all 
cases  arising  under  the  constitution. 

Could  it  be  the  intention  of  those  who  gave  this  power, 
to  say  that  in  using  it  the  constitution  should  not  be  looked 
into?  That  a  case  arising  under  the  constitution  should  be 
decided  without  examining  the  instrument  under  which  it 
arises? 

This  is  too  extravagant  to  be  maintained. 

In  some  cases,  then,  the  constitution  must  be  looked  into 
by  the  judges.  And  if  they  can  open  it  at  all,  what  part  of 
it  are  they  forbidden  to  read  or  to  obey  ? 


DOCTRINES  OF  JOHN  MARSHALL          339 

There  are  many  other  parts  of  the  constitution  which  serve 
to  illustrate  this  subject. 

It  is  declared  that  "  no  tax  or  duty  shall  be  laid  on  articles 
exported  from  any  state."  Suppose  a  duty  on  the  export  of 
cotton,  of  tobacco,  or  of  flour ;  and  a  suit  instituted  to  recover 
it.  Ought  judgment  to  be  rendered  in  such  a  case?  ought  the 
judges  to  close  their  eyes  on  the  constitution,  and  only  see  the 
law? 

The  constitution  declares  "  that  no  bill  of  attainder  or  ex 
post  facto  law  shall  be  passed." 

If,  however,  such  a  bill  should  be  passed,  and  a  person 
should  be  prosecuted  under  it;  must  the  court  condemn  to 
death  those  victims  whom  the  constitution  endeavours  to  pre 
serve  ? 

"  No  person,"  says  the  constitution,  "  shall  be  convicted  of 
treason  unless  on  the  testimony  of  two  witnesses  to  the  same 
overt  act,  or  on  confession  in  open  court." 

Here  the  language  of  the  constitution  is  addressed  especially 
to  the  courts.  It  prescribes,  directly  for  them,  a  rule  of  evi 
dence  not  to  be  departed  from.  If  the  legislature  should 
change  that  rule,  and  declare  one  witness,  or  a  confession  out 
of  court,  sufficient  for  conviction,  must  the  constitutional  prin 
ciple  yield  to  the  legislative  act? 

From  these,  and  many  other  selections  which  might  be  made, 
it  is  apparent,  that  the  framers  of  the  constitution  contem 
plated  that  instrument  as  a  rule  for  the  government  of  the 
courts,  as  well  as  of  the  legislature. 

Why  otherwise  does  it  direct  the  judges  to  take  an  oath  to 
support  it  ?  This  oath  certainly  applies  in  an  especial  manner, 
to  their  conduct  in  their  official  character.  How  immoral 
to  impose  it  on  them,  if  they  were  to  be  used  as  the  instru 
ments,  and  the  knowing  instruments,  for  violating  what  they 
swear  to  support. 

The  oath  of  office,  too,  imposed  by  the  legislature,  is  com 
pletely  demonstrative  of  the  legislative  opinion  on  this  sub 
ject.  It  is  in  these  words:  "  I  do  solemnly  swear  that  I  will 
administer  justice  without  respect  to  persons,  and  do*  equal 
right  to  the  poor  and  to  the  rich;  and  that  I  will  faithfully  and 
impartially  discharge  all  the  duties  incumbent  on  me  as,  ac 
cording  to  the  best  of  my  abilities  and  understanding,  agree 
ably  to  the  constitution  and  laws  of  the  United  States.'* 


340  THE  POLITICAL  AND  ECONOMIC 

Why  does  a  judge  swear  to  discharge  his  duties  agreeably 
to  the  constitution  of  the  United  States,  if  that  constitution 
forms  no  rule  for  his  government?  if  it  is  closed  upon  him, 
and  cannot  be  inspected  by  him  ? 

If  such  be  the  real  state  of  things,  this  is  worse  than  solemn 
mockery.  To  prescribe,  or  to  take  this  oath,  becomes  equally 
a  crime. 

It  is  also  not  entirely  unworthy  of  observation,  that  in  de 
claring  what  shall  be  the  supreme  law  of  the  land,  the  consti 
tution  itself  is  first  mentioned ;  and  not  the  laws  of  the  United 
States  generally,  but  those  only  which  shall  be  made  in  pur 
suance  of  the  constitution,  have  that  rank. 

Thus,  the  particular  phraseology  of  the  constitution  of  the 
United  States  confirms  and  strengthens  the  principle,  supposed 
to  be  essential  to  all  written  constitutions,  that  a  law  repugnant 
to  the  constitution  is  void;  and  that  courts,  as  well  as  other 
departments,  are  bound  by  that  instrument. 

The  rule  must  be  discharged.72 

V^ARSHALL'S  DECISION  IN  GIBBONS  v.  OGDEN 

The  judicial  construction  of  the  commerce  clause  begins 
in  1824  with  Chief  Justice  Marshall's  opinion  in  Gibbons  v. 
Ogden,  wherein  a  grant  of  land  the  State  of  New  York  for 
the  exclusive  right  to  navigate  the  waters  of  New  York  with 
boats  propelled  by  fire  or  steam  was  held  void  as  repugnant 
to  the  commerce  clause  of  the  Constitution,  so  far  as  the  act 
prohibited  vessels  licensed  by  the  laws  of  the  United  States 
for  carrying  on  the  coast  trade  from  navigating  the  said  waters 
by  fire  or  steam. 

The  broad  and  comprehensive  construction  of  the  term 
"  commerce  "  in  this  opinion  is  the  basis  of  all  subsequent 
decisions  construing  the  commerce  clause,  and  is  the  recog 
nized  source  of  authority.  Commerce  is  more  than  traffic; 
it  includes  intercourse.  The  power  to  regulate  is  the  power 
to  prescribe  the  rules  by  which  commerce  is  to  be  governed. 
This  power  like  all  others  vested  in  Congress  is  complete  in 
itself,  and  may  be  exercised t«  ftl$  fltmost  extent,  and  acknowl 
edges  no  limitations  other  than  as  prescribed  in  the  Constitu 
tion.  The  Court  said  that  the  powers  over  commerce  with  for- 
72  Cranch,  sec.  154-180  inclusive. 


DOCTRINES  OF  JOHN  MARSHALL          341 

eign  nations  and  among  the  various  states  is  vested  in  Con 
gress  as  absolutely  as  it  would  be  in  a  single  government  having 
in  its  Constitution  the  same  restrictions  on  the  exercise  of  the 
power  as  is  found  in  the  Constitution  of  the  United  States. 
The  power  comprehended  navigation  within  the  limits  of  every 
State  so  far  as  navigation  may  in  any  manner  connected  with 
commerce  with  foreign  nations  or  among  the  several  states,  or 
with  the  Indian  Tribes,  and  therefore  it  passed  beyond  the 
jurisdictional  line  of  New  York  and  included  the  public  waters 
of  the  State  which  were  connected  with  foreign  or  interstate 
commerce. 

In  this  opinion  we  find  that  the  most  important  and  far 
reaching  declaration  was  that  of  the  supremacy  of  the  Federal 
power,  so'  that  in  any  case  of  conflict  the  act  of  Congress  was 
supreme,  and  state  laws  must  yield  thereto,  though  enacted 
in  the  exercise  of  powers  which  are  not  controverted.  In  the 
Passenger  Cases  73  the  rule  declared  in  this  case  was  applied 
in  holding  invalid  certain  State  statutes  imposing  taxes  upon 
alien  passengers.  It  was  said  that  included  navigation  and  in 
tercourse  and  the  transportation  of  passengers. 

The  Court  said  in  the  Pensacola  Telegraph  Company  case  74 
that  since  the  case  of  Gibbons  v.  Ogden  it  had  never  been 
doubted  that  commercial  intercourse  was  an  element  which 
comes  within  the  power  of  regulation  by  Congress,  and  that 
the  power  thus  granted  was  not  confined  to  the  instrumental 
ities  of  commerce  known  or  in  use  when  the  Constitution  was 
adopted,  but  kept  pace  with  the  progress  of  the  country,  adapt 
ing  themselves  to  the  new  developments  of  time  and  circum 
stances.  In  the  language  of  the  Court :  "  They  extend  from 
the  horse  with  its  rider  to  the  stage  coach,  from  the  sailing 
vessel  to  the  steamboat,  from  the  coach  and  steamboat  to  the 
railroad,  and  from  the  railroad  to  the  telegraph,  as  these  new 
agencies  are  successively  brought  into  use  to  meet  the  de 
mands  of  increasing  population  and  wealth.  They  were  in 
tended  for  the  government  of  the  business  to  which  they  re 
late  at  all  times  and  under  all  circumstances."  In  a  late  case 
it  was  said  T5  that  the  commerce  which  Congress  could  regulate 

737  Howard  283  (1849),  12  L.Ed.  702. 

74 96  U.  S.  i  (1877),  24  L.Ed.  708,  711.  Construing  act  of  July  24, 
1866,  as  a  prohibition  of  all  State  monopolies  in  interstate  telegraph 
business. 

75  W.  U.  Tel.  Co.  v.  Pendleton,  122  U.  S.  347  (1887),  30  L.Ed.  1187. 


342  THE  POLITICAL  AND  ECONOMIC 

included  not  only  the  interchange  and  transportation  of  com 
modities  or  visible  and  tangible  things,  but  the  carriage  of 
persons  and  the  transmission  by  telegraph  of  ideas,  orders 
and  intelligence.  Importation  into  one  state  from  another 
is  the  indispensable  element  and  the  test  of  interstate  com 
merce;  and  every  negotiation,  contract,  trade  and  dealing  be 
tween  citizens  of  different  States  which  contemplates  and  uses 
such  importation,  whether  it  be  of  goods,  persons  or  informa 
tion,  is  a  transaction  of  interstate  commerce  76  which  com 
merce  therefore  includes  not  only  communication  by  telephone 
between  points  in  different  States,77  but  also  communication 
through  a  correspondence  school,  where  the  intercourse  and 
communication  relates  to  matters  of  regular  and  continuous 
business  and  the  conduct  of  such  business,  therefore,  through 
local  agencies  is  exempt  from  state  control  or  interference.78 

COMMERCE    POWERS 

Definition:  —  The  opinion  in  the  case  of  Gibbon  v.  Ogden  79 
was  delivered  by  Chief  Justice  Marshall  and  is  regarded  as 
one  of  his  greatest  judicial  utterances,  the  path  before  him 
being  untrodden  by  any  Federal  decision  save  his  own  in  the 
Brig  Wilson  case.  The  opinion  which  Marshall  delivered, 
and  in  which  no  authority  was  cited  was  so  able,  so  profound 
and  masterful  that  it  announced  the  principle  which  all  future 
decisions  have  followed.  In  this  great  decision,  the  chief 
justice  among  other  things  said: 

"  As  men  whose  intentions  require  no  concealment,  generally 
employ  the  words  which  most  directly  and  aptly  express  the 
ideas  they  intend  to  convey,  the  enlightened  patriots  who 

78  From  opinion  of  Sanborn,  J.,  in  Butler  Brothers  Shoe  Co.  v.  United 
States  Rubber  Co.,  156  Federal,  i,  C.  C.  A.  8th  Cir.,  quoted  by  the  Su 
preme  Court,  in  International  Text-book  Co.  v.  Pigg,  217  U.  S.  91  (1910). 

77  Richmond  v.  Southern  Bell  Tel.  Co.,  174  U.  S.  761.     U.  S.  v.  West- 
man,  182  Fed.  1017  (Ore.  1910).    The  White  Slave  Traffic  Act  was  sus 
tained  as  within  the  commerce  power  of  Congress.     It  was  also  sustained 
by  the  District  Court,  E.  D.  of  Texas,  187  Fed.  992  (1911),  holding  that 
the  transportation  of  persons  was  commerce  and  that  Congress,  under  its 
power  of  regulation  as  per  Lottery  Cases,  could  prohibit  a  class  of  com 
merce  in  the  interest  of  Public  Morals. 

78  International   Text-book   Co.   v.   Pigg.  217   U.    S.   91,   where   it   was 
held  that  a  corporation  working  under  a  system  of  credits  through  a  list  of 
attorneys  of  different  states  was  held  liable  to  a  state  license  tax. 

79  9  Wheaton,  i. 


DOCTRINES  OF  JOHN  MARSHALL          343 

framed  our  Constitution,  and  the  people  who  adopted  it,  must 
be  understood  to  have  employed  words  in  their  natural  sense, 
and  to  have  intended  what  they  have  said.  If,  from  the  im 
perfection  of  human  language,  there  should  be  serious  doubts 
respecting  the  extent  of  any  given  power,  it  is  a  well  settled 
rule,  that  the  objects  for  which  it  was  given,  especially  when 
those  objects  are  expressed  in  the  instrument  itself,  should 
have  great  influence  in  the  construction.  We  know  of  no 
reason  for  excluding  this  rule  from  the  present  case.  The 
grant  does  not  convey  power  which  might  be  beneficial  to  the 
grantor,  if  retained  by  himself,  or  which  can  enure  solely 
to  the  benefit  of  the  grantee;  but  is  an  investment  of  power 
for  the  general  advantage,  in  the  hands  of  agents  selected  for 
that  purpose ;  which  power  can  never  be  exercised  by  the  peo 
ple  themselves,  but  must  be  placed  in  the  hands  of  agents,  or 
lie  dormant.  We  know  of  no  rule  for  construing  the  extent  of 
such  powers,  other  than  is  given  by  the  language  of  the  in 
strument  which  confers  them,  taken  in  connection  with  the 
purposes  for  which  they  were  conferred. 

"  Commerce,  undoubtedly,  is  traffic,  but  it  is  something  more ; 
it  is  intercourse.  It  describes  the  commercial  intercourse  be 
tween  nations,  and  parts  of  nations,  in  all  its  branches,  and  is 
regulated  by  prescribing  rules  for  carrying  on  that  inter 
course. 

"  If  commerce  does  not  include  navigation,  the  government 
of  the  Union  has  no  direct  power  over  that  subject,  and  can 
make  no  law  prescribing  what  shall  constitute  American  ves 
sels,  or  requiring  that  they  shall  be  navigated  by  American 
seamen.  Yet  this  power  has  been  exercised  from  the  com 
mencement  of  the  government,  has  been  exercised  with  the  con 
sent  of  all,  and  has  been  understood  by  all  to  be  a  commercial 
regulation.  All  America  understands,  and  has  uniformly 
understood,  the  word  *  commerce,'  to  comprehend  navigation. 
It  was  so  understood,  and  must  have  been  so  understood  when 
the  Constitution  was  framed.  The  power  over  commerce,  in 
cluding  navigation,  was  one  of  the  primary  objects  for  which 
the  people  of  America  adopted  their  government,  and  must 
have  been  contemplated  in  forming  it.  The  convention  must 
have  used  the  word  in  that  sense,  because  all  have  understood 
it  in  that  sense;  and  the  attempt  to  restrict  it  comes  too 
late. 


344  THE  POLITICAL  AND  ECONOMIC 

'  The  word  used  in  the  Constitution,  then,  comprehends, 
and  has  always  been  understood  to  comprehend,  navigation; 
and  a  power  to  regulate  navigation  is  as  expressly  granted  as 
if  that  term  had  been  added  to  the  word  '  commerce.' ' 

After  defining  the  term  "  commerce,"  as  used  in  the  Consti 
tution,  and  having  decided  that  it  embraced  navigation,  Mar 
shall  then  proceeded  to  consider  the  question :  "  To  what 
commerce  does  this  power  extend  ?  "  He  said :  "  The  Consti 
tution  informs  us,  to  commerce  with  foreign  nations  and 
among  the  several  States,  and  with  the  Indian  tribes." 

Later  in  the  decision  he  continued :  "  It  has,  we  believe, 
been  universally  admitted,  that  these  words  comprehend  every 
species  of  commercial  intercourse  between  the  United  States 
and  foreign  nations.  No  sort  of  trade  can  be  carried  on  be 
tween  this  country  and  any  other,  to  which  this  power  does 
not  extend.  .  .  .  Commerce,  as  the  word  is  used  in  the  Con 
stitution,  is  a  unit,  every  part  of  which  is  indicated  by  the 
term." 

He  next  came  to  the  subject  of  commerce  between  the 
States.  He  said :  "  The  subject  to  which  the  power  is  next 
applied  is  to  commerce  '  among  the  several  States.'  The  word 
'  among '  means  intermingled  with.  A  thing  which  is  among 
others  is  intermingled  with  them.  Commerce  among  the 
States,  can  not  stop  at  the  external  boundary  line  of  each 
State,  but  may  be  introduced  into  the  interior."  In  order 
to  distinguish  what  may  be  called  State  commerce  from  the 
broader  expression  of  commerce  among  the  States,  and  to 
establish  the  rule  for  the  discrimination  in  such  cases,  Marshall 
said :  "  It  is  not  intended  to  say  that  these  words  compre 
hend  that  commerce  which  is  completely  internal,  which  is 
carried  on  between  man  and  man  in  a  State,  or  between  dif 
ferent  parts  of  the  same  State,  and  which  does  not  extend 
to,  or  affect  other  States.  Such  a  power  would  be  incon 
venient,  and  is  certainly  unnecessary. 

"  Comprehensive  as  the  word  '  among '  is,  it  may  very 
properly  be  restricted  to  that  commerce  which  concerns  more 
States  than  one.  The  phrase  is  not  one  which  would  prob 
ably  have  been  selected  to  indicate  the  completely  interior  traf 
fic  of  a  State,  because  it  is  not  an  apt  phrase  for  that 
purpose ;  and  the  enumeration  of  the  particular  classes  of 
commerce  to  which  the  power  was  to  be  extended,  would  not 


DOCTRINES  OF  JOHN  MARSHALL          345 

have  been  made,  had  the  intention  been  to  extend  the  power 
to  every  description.  The  enumeration  presupposes  something 
not  enumerated;  and  that  something,  if  we  regard  the  lan 
guage,  or  the  subject  of  the  sentence,  must  be  the  exclusively 
internal  commerce  of  a  State.  The  genius  and  character  of 
the  whole  government  seem  to  be,  that  its  action  is  to  be  applied 
to  all  the  external  concerns  of  the  nation,  and  to  those  internal 
concerns,  which  affect  the  States  generally;  but  not  to  those 
which  are  completely  within  a  particular  State,  which  do  not 
affect  other  States,  and  with  which  it  is  not  necessary  to  in 
terfere,  for  the  purpose  of  executing  some  of  the  general 
powers  of  the  government.  The  completely  internal  com 
merce  of  a  State,  then,  may  be  considered  as  reserved  for  the 
State  itself. 

"  But  in  regulating  commerce  with  foreign  nations,  the 
•power  of  Congress  does  not  stop  at  the  jurisdictional  lines 
of  the  several  States.  It  would  be  a  very  useless  power,  if 
it  could  not  pass  those  lines.  The  commerce  of  the  United 
States  with  foreign  nations,  is  that  of  the  whole  United  States. 
Every  district  has  a  right  to  participate  in  it.  The  deep 
streams  which  penetrate  our  country  in  every  direction,  pass 
through  the  interior  of  almost  every  State  in  the  Union,  and 
furnish  the  means  of  exercising  this  right.  If  Congress  has 
the  power  to  regulate  it,  that  power  must  be  exercised  whenever 
the  subject  exists.  If  it  exists  within  the  States,  if  a  for 
eign  voyage  may  commence  or  terminate  at  a  port  within  a 
State. 

"  This  principle  is,  if  possible,  still  more  clear,  when  applied 
to  commerce  '  among  the  several  States.'  They  either  join  each 
other  in  which  case  they  are  separated  by  a  mathematical  line, 
or  they  are  remote  from  each  other,  in  which  case  other  States 
lie  between  them.  What  is  commerce  '  among '  them ;  and 
how  is  it  to  be  conducted  ?  Can  a  trading  expedition  between 
two  adjoining  States  commence  and  terminate  outside  of  each? 
And  if  the  trading  intercourse  be  between  two  States  remote 
from  each  other,  must  it  not  commence  in  one,  terminate  in  the 
other,  and  probably  pass  through  a  third?  Commerce  among 
the  States,  must,  of  necessity,  be  commerce  within  the  States. 
In  the  regulation  of  trade  with  the  Indian  Tribes,  the  action 
of  the  law,  especially  when  the  Constitution  was  made,  was 
chiefly  within  a  State.  The  power  of  Congress,  then,  whatever 


I 


346  THE  POLITICAL  AND  ECONOMIC 

it  may  be,  must  be  exercised  within  the  territorial  jurisdiction 
of  the  several  States.  .  .  . 

"  We  are  now  arrived  at  the  inquiry  —  what  is  this  power? 
It  is  the  power  to  regulate;  that  is,  to  prescribe  the  rule  by 
which  commerce  is  to  be  governed.  This  power,  like  all  others 
vested  in  Congress,  is  complete  in  itself,  may  be  exercised  to  its 
utmost  extent,  and  acknowledges  no  limitations,  other  than 
are  prescribed  in  the  Constitution.  .  .  .  The  power  of  Con 
gress,  then,  comprehends  navigation  within  the  limits  of  every 
State  in  the  Union,  so  far  as  that  navigation  may  be,  in  any 
manner,  connected  with  '  commerce  with  foreign  nations,  or 
among  the  several  States,  or  with  the  Indian  Tribes.'  It 
may,  of  consequence,  pass  the  jurisdictional  line  of  New  York, 
and  act  upon  the  very  waters  to  which  the  prohibition  now 
under  consideration  applies." 

By  analyzing  this  great  opinion  we  see  that  Marshall  denned 
with  masterful  genius  the  important  term  and  words  in  this 
clause,  and  settled  many  questions  arising  out  of  their  con 
sideration,  and  made  them  all  so  clear  that  no  mistake  could 
be  made  in  the  meaning  of  his  language. 

( i ) .  He  denned  commerce,  and  said  it  was  traffic  and  inter 
course,  and  that  it  described  commercial  intercourse  between 
nations,  and  parts  thereof. 

(2).  Said  that  the  language  of  this  clause  shows  that  com 
merce  includes  navigation. 

(3).  Decided  that  every  species  of  commercial  intercourse 
between  the  United  States  and  foreign  nations  is  compre 
hended;  that  no  sort  of  trade  can  be  carried  on  between  this 
and  other  countries  to  which  this  power  does  not  extend ;  that 
commerce  as  used  in  the  Constitution,  is  a  unit,  every  part  of 
which  is  indicated  by  the  term. 

(4).  Denned  the  word  "among"  as  meaning  "  intermin 
gled  with."  Made  it  quite  plain  that  it  was  restricted  to 
that  commerce  which  concerned  more  States  than  one. 

(5).  Commerce  that  is  completely  internal  not  compre 
hended  in  this  clause,  and  concerns  only  the  State  where  carried 
on. 

(6).  In  regulating  commerce  with  foreign  nations  the  power 
of  Congress  does  not  stop  at  State  lines,  because  it  is  that 
of  the  whole  United  States. 

(7).  Commerce  among  the  States  must  be  commerce  with 


DOCTRINES  OF  JOHN  MARSHALL          347 

the  states  necessarily,  and  the  power  of  Congress  must  be  ex 
ercised  within  the  territorial  jurisdiction  of  the  States. 

(8).  In  regard  to  "  what  is  this  power  of  Congress?"  he 
said,  it  is  the  power  to  regulate,  the  power  to  prescribe  the 
rule  by  which  commerce  shall  be  governed.  That  it  is  vested 
in  Congress,  is  complete  in  itself,  and  may  be  exercised  to  its 
utmost  extent,  for  it  has  no  limitations  beyond  those  found  in 
the  Constitution. 

Every  definition  of  commerce  which  has  been  given  by  the 
courts  since  this  decision,  reflects  the  definition  given  by  Chief 
Justice  Marshall. 

In  regard  to  power  of  Congress  over  commerce  among  the 
States,  Marshall  says :  80 

f  "  In  regulating  commerce  with  foreign  nations,  the  power  of 
Congress  does  not  stop  at  the  jurisdictional  lines  of  the  several 
States.  It  would  be  a  very  useless  power  if  it  could  not  pass 
those  lines.  The  commerce  of  the  United  States  with  foreign 
nations,  is  that  of  the  whole  United  States.  If  Congress  has 
the  power  to  regulate  it,  that  power  must  be  exercised  when 
ever  the  subject  exists,  and  this  principle,  if  possible,  is  stil 
more  clear  when  applied  to  commerce  '  among  the  States.'  ' 

This  important  case  which  is  so  often  discussed  is  given  a 
place  here  for  several  reasons.  One  of  them  being  to  show 
what  the  method  of  the  Expounder  of  the  Constitution  was 
like,  and  the  thorough  manner  of  attacking  the  various  details. 
Many  think  that  this  opinion  is  overlauded,  and  that  it  lays 
down  too  barely  and  didactically,  with  too  small  a  basis  of 
argument  and  history,  the  American  doctrine  of  Constitutional 
law. 

80  Gibbons  v.  Ogden,  9  Wheaton,  195. 


CHAPTER  VII 

THE    DEATH    OF    CHIEF    JUSTICE    MARSHALL 

CHIEF  JUSTICE  MARSHALL  died  July  6,  1835,  a^  tne  age  °f 
eighty,  having  seen  during  his  lifetime  the  firm  establishment 
of  nearly  all  the  fundamental  doctrines  of  American  Consti- 
tional  and  International  Law  as  applied  by  the  courts  of  the 
country. 

The  bulk  of  this  work  was  done  by  Chief  Justice  Marshall 
himself.  As  I  have  mentioned  elsewhere  in  this  volume,  there 
were  but  five  cases  of  any  importance  before  the  Supreme 
Court  of  the  United  States  prior  to  1801,  when  John  Marshall 
was  made  Chief  Justice.  ^  How  great  was  his  share  of  the 
work  may  be  judged  by  the  following  figures.  Between  1801 
and  1835  there  were  £2  decisions  of  a  Constitutional  nature, 
in  36,  of  which  Marshall  wrote  the  opinion.  Of  a  total  of 
1,215  cases  during  that  period,  in  94  no  opinions  were  filed, 
in  15  the  decision  was  "  by  the  court,"  and  of  the  remaining 
1,106  cases  Marshall  delivered  the  opinion  in  519. 

During  the  same  period  of  time  there  were  196  cases  in 
volving  questions  of  International  Law,  or  in  some  way  affect 
ing  international  relations.  In  80  of  these  the  opinion  was 
delivered  by  Marshall ;  in  37,  by  Story ;  in  28,  by  Johnson ; 
in  one  each  by  Baldwin,  Cushing,  and  Duvall ;  and  in  8  the 
opinion  was  given  "  by  the  court."  1 

No  doubt  the  members  of  the  legal  profession  at  that  time 
looked  forward  to  the  appointment  of  Judge  Joseph  Story 
as  Marshall's  successor.  But,  as  Jackson's  phrase  put  it, 
"  the  school  of  Story  and  Kent  "  could  expect  no  favors  at 
the  hands  of  the  President,  for  their  political  constitutional 
views  differed  too  widely.  Story  wrote :  "  Whoever  suceeds 
Marshall  will  have  a  most  painful  and  discouraging  duty.  He 
will  follow  a  man  who  cannot  be  equalled,  and  all  the  public 
will  see  or  think  they  see  the  difference.  ...  I  take  it  for 
granted  that  all  of  us  who  are  on  the  bench  are  hors  de  com 
bat." 

1  Address  by  John  Bassett  Moore  before  the  Delaware  State  Bar  As 
sociation,  February  5th,  1901. 

348 


DOCTRINES  OF  JOHN  MARSHALL          349 

John  Quincy  Adams,  in  his  diary  of  July  10,  1835,  says: 
"  John  Marshall  died  at  Philadelphia  last  Monday.  He  was 
one  of  the  most  eminent  men  that  this  country  has  ever  pro 
duced  —  a  Federalist  of  the  Washington  School.  The  As 
sociate  Judges  from  the  time  of  his  appointment  have  generally 
been  taken  from  the  Democratic  or  Jeffersonian  party.  Not 
one  of  them,  excepting  Story,  has  been  a  man  of  great  ability. 
Several  of  them  have  been  men  of  strong  prejudices,  warm 
passions,  and  contracted  minds ;  one  of  them  occasionally  in 
sane.  Marshall,  by  the  ascendancy  of  his  genius,  by  the 
amenity  of  his  deportment,  and  by  the  imperturbable  command 
of  his  temper,  has  given  a  permanent  and  systematic  character 
to  the  decisions  of  the  Court,  and  settled  many  great  consti 
tutional  questions  favorably  to  the  continuance  of  the  Union./ 
Marshall  has  cemented  the  Union  which  the  crafty  and  quix 
otic  democracy  of  Jefferson  had  a  perpetual  tendency  to  dis 
solve.  Jefferson  hated  and  dreaded  him.  It  is  much  to  be 
feared  that  a  successor  will  be  appointed  of  a  very  different 
character.  The  President  of  the  United  States  now  in  office, 
has  already  appointed  three  Judges  of  the  Supreme  Court ; 
with  the  next  appointment  he  will  have  constituted  the  Chief 
Justice  and  a  majority  of  the  Court.  He  has  not  yet  made 
one  good  appointment.  His  Chief  Justice  will  be  no  better 
than  the  rest." 

Six  months  after  Chief  Justice  Marshall's  death  Roger  B. 
Taney,  of  Maryland,  was  appointed  by  President  Jackson. 
As  Charles  Warren  in  "  The  History  of  the  American  Bar  " 
says,  "  This  was  a  surprise  to  most  of  the  Bar."  Chief  Justice 
Taney's  decisions  showed  a  decided  reaction  from  the  central 
izing  views  of  Chief  Justice  Marshall.  This  was  first  seen 
in  three  cases  in  1837,  in  each  of  which  a  State  Statute  al 
leged  to  be  in  violation  of  the  Federal  Constitution  was  upheld. 


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BINNEY,  HORACE.  An  eulogy  on  the  life  and  character  of  John 
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BINNEY,  HORACE.  Same.  In  Waldie,  A.  Select  Circulating 
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BINNEY,  HORACE.  Binney's  eulogy  on  Chief  Justice  Marshall. 
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BLACK,  JOHN  C.  John  Marshall.  In  Illinois  State  Bar  Asso 
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BLACK,  JOHN  C.  John  Marshall.  In  Albany  Law  Journal. 
Vol.  54,  July  25,  1896,  pp.  55-62. 

BRADLEY,  JOSEPH  P.  Saint  Memin's  Portrait  of  Marshall.  In 
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BROOKS,  ELBRIDGE  S.  The  Story  of  John  Marshall,  of  Rich 
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BROWNE,  IRVING.  John  Marshall.  In  his  "  Short  Studies  of 
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BRYANT,  JAMES  R.  M.  Eulogium  on  Chief  Justice  Marshall,  de 
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24th  of  September,  1835,  at  the  request  of  the  Union 
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BARNES,  WILLIAM  HORATIO.  "  The  Supreme  Court  of  the 
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BATEMAN,  HORATIO.  Biographies  of  Two  Hundred  and  Fifty 
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Giles  &  Co.,  1871.  12°.  P.  50. 

CARSON,  HAMPTON  LAWRENCE.  The  Supreme  Court  of  the 
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350 


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CASSODY,  JOHN  B.  John  Scott  and  John  Marshall.  In  Ameri 
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CHIEF  JUSTICE  MARSHALL. 

In  American  Quarterly  Review,  Vol.  18,  Dec.,  1835,  pp.  473- 

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COOKE,  JOHN  ESTEN.  Early  Days  of  John  Marshall.  In  His 
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CRAIGHILL,  ROBERT  T.  John  Marshall.  In  his  "  The  Virginia 
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DICKINSON,  MARQUIS  FAYETTE,  JR.  John  Marshall.  The 
tribute  of  Massachusetts;  being  the  addresses  delivered  at 
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DILLON,  JOHN  FORREST,  ed.  John  Marshall;  life,  character,  and 
judicial  services  as  portrayed  in  the  centenary  and  memorial 
addresses  and  proceedings  throughout  the  United  States  on 
Marshall  day,  1901,  and  in  the  classic  orations  of  Binney, 
Story,  Phelps,  Waite,  and  Rawle;  compiled  and  edited  with 
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352  BIBLIOGRAPHY 

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FINCH,  FRANCIS  MILES.  Chief  Justice  John  Marshall.  Mar 
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FLANDERS,  HENRY.  The  Life  of  John  Marshall.  Philadelphia: 
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FULLER,  MELVILLE  W.  Chief  Justice  Marshall.  In  the  Dial 
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HARDY,  SALLIE  E.  MARSHALL.  The  Will  of  a  Great  Lawyer. 
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"  Orations  and  Essays,"  edited  by  J.  G.  McCullough,  pp. 
27-53.  New  York,  1901.  8°. 

PROCTOR,  L.  B.  Jefferson's  Contempt  of  Chief  Justice  Mar 
shall's  Opinions.  In  Albany  Law  Journal,  Vol.  44,  Oct.  24, 
1891,  pp.  342-343- 

RAWLE,  WILLIAM  HENRY.  Unveiling  of  the  Statue  of  Chief 
Justice  Marshall,  at  Washington,  May  10,  1884.  Oration. 
Philadelphia:  Allen,  Lane  &  Scott's  printing  house,  1884. 

3i  PP-     4°. 

RHODE  ISLAND  BAR  ASSOCIATION.  John  Marshall  Day :  Cele 
bration  by  the  Rhode  Island  Bar  Association  and  Brown 
University,  Feb.  4,  1901  :  address  by  Le  Baron  Bradford 
Colt;  introductory  address  by  Francis  Colwell.  (Provi 
dence:  Rhode  Island  Printing  Co.,  1901.)  53  pp.  Por 
trait.  8°. 

ROANE,  SPENCER.  Roane  on  the  National  Constitution.  Re 
prints  from  the  Richmond  Chronicle  and  Richmond  En 
quirer.  In  the  John  P.  Branch  "  Historical  Papers,"  Vol. 
2,  June,  1905,  pp.  47-122.  Richmond,  1905,  8°.  "  No 
apology  is  offered  for  devoting  so  much  space  in  the  Branch 
papers  this  year  to  the  life  and  work  of  Judge  Spencer 
Roane.  Henry  Adams  and  the  other  historians  of  the 
period  have  but  little  to  say  of  Roane  or  of  the  protest 
which  he  constantly  made  against  Chief  Justice  Marshall, 
and  the  files  of  the  Richmond  Enquirer,  which  gave  so  much 
of  the  history  of  Virginia  at  the  time,  are  easily  accessible. 
John  Marshall  and  the  Supreme  Court  of  the  United  States, 
as  will  "be  seen,  were  subjects  of  lively  attack."  (Introduc 
tion.) 

RUSSELL,  ALFRED.  John  Marshall.  In  American  Law  Review, 
Vol.  35,  Jan.-Feb.,  1901.  pp.  1-7. 

STORY,  JOSEPH.  An  address  by  Mr.  Justice  Story  on  Chief  Jus 
tice  Marshall.  Delivered  in  1852  (1835)  at  request  of 
the  Suffolk  (Mass.)  Bar.  Rochester,  N.  Y. :  The  Law 
yers'  Cooperative  Publishing  Co.,  1900.  60  pp.  Por 
traits.  8°. 

SCOTT,  HENRY  W.  John  Marshall.  In  his  "  Distinguished 
American  Lawyers,"  pp.  537-544.  New  York,  1891.  8°. 


356  BIBLIOGRAPHY 

STORY,  JOSEPH.     Life  of  Chief  Justice  Marshall.     In  American 

Law  Magazine,  Vol.  I,  July,  1843,  PP-  243~3O1- 
STORY,  JOSEPH.     Mr.  Justice   Story's  Eulogy  of   Chief  Justice 

Marshall.     In  American  Jurist,  Vol.  14,  Oct.,  pp.  448-454. 
STORY,   JOSEPH.     John   Marshall,   LL.D.,   Chief  Justice  of   the 

United  States.     In  Current  Comment,  Vol.  I,  June  15,  1889, 

pp.  213-224;  July  15,  1889,  pp.  253-261. 
TERHUNE,  MARY  VIRGINIA  H.     The  Marshall  House.     In  her 

"  Some  Colonial  Homesteads  and  Their  Stories,"  pp.  84-103. 

New  York,  1897.     8°. 
THAYER,  JAMES  BRADLEY.     John  Marshall;  an  address  delivered 

in  Sander's  Theatre,  Cambridge,  before  the  Law  School  of 

Harvard  University  and  the  Bar  Association  of  the  City  of 

Boston   on   Feb.   4,    1901.     Cambridge:  J.   Wilson   &    Son, 

1901.     48  pp.     4°. 
THAYER,      JAMES      BRADLEY.     John      Marshall.     In      Atlantic 

Monthly,  Vol.  87,  Mar.,  1901,  pp.  328-341. 
THAYER,    JAMES    BRADLEY.     John    Marshall.     Boston    &    New 

York:  Houghton,  Mifflin  and  Co.,  1901.     (8),  157,  (i)  pp. 

Portrait.     12°.     (Riverside  Biographical   Series,   No.  7.) 
\THOMAS  JEFFERSON'S  Opinion  of  John  Marshall  and  His  Court. 

In  American  Law  Review,   Vol.   35,   Jan.-Feb.,    1901,   pp. 

63-77. 

UNITED  STATES.  Congress.  Exercises  at  the  ceremony  of  the 
unveiling  of  the  statue  of  John  Marshall,  Chief  Justice  of 
the  United  States,  in  front  of  the  Capitol,  Washington,  May 
10,  1884.  With  the  address  of  Chief  Justice  Waite  and 
the  Oration  of  W.  H.  Rawle.  Washington:  Government 
printing  office,  1884.  92  pp.  Frontispiece.  4°. 

WAITE,  CATHERINE  V.  John  Marshall.  In  Chicago  Law  Times, 
Vol.  i,  Apr.,  1887,  pp.  109-121. 

WAITE,  MORRISON  REMICK.  The  Orations  of  Chief  Justice 
Waite  and  of  William  Henry  Rawle  on  the  Occasion  of  the 
Unveiling  of  the  Bronze  Statue  of  Chief  Justice  Marshall 
at  Washington,  May  10,  1884.  Chicago:  T.  H.  Flood  & 
Co.,  1900.  58  pp.  Portrait.  8°. 

WILLIAMS,  GEORGE  HENRY.  Address  on  John  Marshall,  deliv 
ered  by  Hon.  Geo.  H.  Williams  before  the  Legislative  As 
sembly  of  the  State  of  Oregon,  Feb.  4,  1901.  Salem,  Ore.: 
W.  H.  Leeds,  state  printer,  1901.  19  pp.  8°. 

WILSON,  JOHN  R.     John  Marshall.     In  American  Law  Review, 

Vol.  22,  Sept.-Oct.,  1888,  pp.  706-730. 

V  WYNNE,  JAMES.  Chief  Justice  Marshall.  In  his  "  Lives  of 
Eminent  Literary  and  Scientific  Men  of  America,"  pp.  231- 
300.  New  York,  1850.  12°. 


BIBLIOGRAPHY  357 

SUPPLEMENTAL 

FLANDERS,  HENRY.  The  Lives  and  Times  of  the  Chief  Jus 
tices  of  the  United  States.  New  York:  James  Cockcroft 
&  Co.,  1875.  2  Vol.  Frontispiece.  8°.  Chief  Justice 
Marshall  (Life)  Vol.  2,  pp.  279-550. 

FRENCH,  BENJAMIN  FRANKLIN.  Biographia  Americana.  New 
York:  Published  by  D.  Mallory,  1825.  vii.  356  pp.  8°. 
John  Marshall.  Page  228. 

JONES,  ABNER  D.  The  American  Portrait  Gallery.  New  York: 
J.  M.  Emerson  and  Co.  1855.  Portraits.  8°.  Chief 
Justice  Marshall,  pp.  97-98. 

BEARD,  CHARLES  A.  The  Supreme  Court  and  the  Constitution. 
New  York:  The  Macmillan  Company,  127  pp.  Based  on  an 
article  published  in  the  Political  Science  Quarterly,  March, 
1912. 

CASSODY,  JOHN  B.  John  Scott  and  John  Marshall,  or  Chief 
Justice  Marshall  contrasted  with  Lord  High  Chancellor 
Eldon.  In  Illinois  State  Bar  Association  Proceedings,  1900. 
Springfield:  1900,  pt.  2.  pp.  69-100.  Also  printed  in 
American  Law  Review,  Jan. -Feb.,  1899,  Vol.  33,  pp.  1-27. 

CENTENNIAL  of  Chief  Justice  Marshall.  In  United  States  Re 
porter,  New  York,  1901.  Vol.  180.  Appendix,  pp.  643- 
716.  "  Supreme  Court  decisions  referred  to,"  p.  713. 
"  Authorities  consulted  other  than  Supreme  Court  Deci 
sions,"  pp.  713-715. 

MILLIKEN,  JOHN  D.  The  early  days  of  Marshall.  In  Bar  As 
sociation  of  State  of  Kansas,  1901.  Clay  Centre,  1901,  pp. 
86-99. 

GROSSCUP,  PETER  S.  (Judge).  On  John  Marshall.  In  Vol.  19, 
National  Corp.  Rep.,  p.  544. 

STORY'S  Tribute  to  Chief  Justice  Marshall  Before  His  Death. 
In  Vol.  19,  Nat.  Corp.  Rep.,  p.  471. 

JOHN  MARSHALL  day  information.  Running  numbers  of  the 
National  Corporation  Reporter.  Commencing  18,  Nat. 
Corp.  Rep.,  p.  713  et  seq. 

CORRESPONDENCE  on  the  subject  of  indorsing  the  celebrations  of 
"  John  Marshall  Day "  throughout  the  United  States.  In 
Vol.  19,  National  Corporation  Reporter,  pp.  7,  716,  761, 
836,  876,  and  908. 

WYTHE,  GEORGE.  Law  Teacher  of  Chief  Justice  Marshall.  In 
Vol.  20,  National  Corporation  Reporter,  p.  80. 

CHESLEY,  J.  HARRY.  Marshall's  Military  Honors  in  War  and 
Peace.  A  short  but  interesting  article.  In  Vol.  20,  Na 
tional  Corporation  Reporter,  p.  116. 


358  BIBLIOGRAPHY 

CHESLEY,  J.  HARRY.     The  Ancestry  of  Chief  Justice  Marshall. 
In  Vol.  20,  National  Corporation  Reporter,  p.  550.     A  short 
article. 
BIOGRAPHICAL  Notice  of  John  Marshall.     In  Vol.  30,  Federal 

Cases,  pp.  1385-1386. 
.  CHARACTERISTICS  of  John  Marshall,  by  Randall  M.  Ewing.     In 

Vol.  3,  Tennessee  Bar  Association  Reports,  pp.  135. 
MARTINEAU,  HARRIET.     "  Retrospect  of  Western  Travel."     1838. 

A  good  description  of  Marshall  and  his  oratory. 
MEADE,  WILLIAM.     "Old  Churches,  Ministers,  and  Families  of 

Virginia."     1872.     Vol.  2,  pp.  216  et  seq. 
MURRAY,    CHARLES    A.     "  Travels    in    North    America."     1839. 

Vol.  i,  p.  158. 

MYERS,  GUSTAVUS.  "  History  of  the  Supreme  Court  of  the 
United  States."  Chicago:  C.  H.  Kerr  and  Company.  1912. 
823  pp. 

SWAN,  CHARLES  H.  Quelques  decisions  recentes  de  la  Cour  Su 
preme  des  fitats-Unis  en  motiere  de  travail.  Bruxelles, 
Office  de  la  Revue  (1909)  23  pp.  Extrait  de  la  Revue 
Economique  Internationale,  Novembre,  1909. 
WILSON,  HENRY  H.  John  Marshall  and  the  Federal  Constitu 
tion.  In  Nebraska  State  Bar  Association  Proceedings, 
1906-1909.  Omaha:  1909.  pp.  213-230. 

MULLER,  F.  W.  Die  Rechtsprechung  der  Supreme  Court  of  the 
United  States.  Betreffend  Art.  i  Absatz  10  der  Verfassung 
der  Vereinigten  Staaten.  Zartschrift  fur  Volkerrecht  und 
Bundesstaaterrecht.  1908.  Vol.  3,  pp.  25-41.  Literatur, 
p.  41. 

HITCHCOCK,  HENRY.     Constitutional  Development  in  the  United 
States  as  Influenced  by  Chief  Justice  Marshall.     Pp.  53-121. 
Constitutional  History.     Addresses  delivered  at  the  Univer 
sity  of  Michigan.     1889. 
ARTICLES  that  are  more  or  less  valuable  and  interesting  may  be 

found  in  the  following  Legal  Magazines: 
American  Jurist,  Vol.  22,  p.  247. 
Virginia  Law  Register,  Vol.  15,  p.  807. 

Current  Comment,  Vol.  i,  pp,  213,  253.     A  sketch  with  por 
trait.     (J.  Story.) 

Law  Student's  Helper,  Vol.  5,  p.  321.     Sketch  with  portrait. 
Chicago  Law  Times,  Vol.  i,  p.  109. 
Chicago  Law  Times,  Vol.  86,  p.  175. 
Minnesota  Law  Journal,  Vol.  4,  p.  104. 
Chicago  Legal  News,  Vol.  28,  p.  380. 
American  Law  Register,  Vol.  (N.  S.)  33,  p.  426. 


BIBLIOGRAPHY  359 

Albany  Law  Journal,  Vol.  2,  p.  126.     Address  by  Professor 

Parsons. 
PERIODICALS  mentioned  below  have  articles  on  Marshall,  most  of 

which  give  some  information  that  is  valuable. 
American    Quarterly    Review,    Vol.    18,    p.    473.     December, 

1835- 

World's  Work,  Vol.  i,  p.  394. 

National  Quarterly  Review,  Vol.  33,  p.  229.     Semtember,  1876. 

New  York  Review,  Vol.  3,  p.  361,  October,  1838. 

North  American  Review,  Vol.  26,  p.  i. 

Historical  Magazine,  Vol.  3,  p.  165.  % 

American  Historical  Review,  Vol.  12,  p.  776. 

Spectator,  Vol.  86,  p.  198. 

Lippincott's,  Vol.  2,  p.  623. 

Political  Science  Quarterly,  Vol.  16,  No.  3. 
-•-Atlantic  Monthly,  Vol.  87,  p.  328. 

Edinburgh  Review,  May,  1820,  p.  113. 

Christian  Review,  Vol.  i,  p.  83. 

Edinburgh  Review,  Vol.  for  October,  1808. 

New  England  Magazine,  new  series,  Vol.  20,  p.  527.  Old 
Series,  Vol.  9,  p.  151. 

North  American  Review,  Vol.  i,  p.  331;  Vol.  5,  p.  115;  Vol. 
10,  p.  89.  Vol.  13,  p.  79;  Vol.  17,  pp.  148  and  167;  Vol. 
18,  p.  90;  Vol.  19,  p.  277  and  287 ;  Vol.  20,  pp.  444  and  453 ; 
Vol.  21,  p.  128;  Vol.  22,  p.  259. 

Reformed  Quarterly,  Vol.  34,  p.  428. 

Pearson's  Magazine  (N.  Y.),  Chief  Justice  John  Marshall: 
the  father  of  American  Judicial  Despotism.  By  A.  L.  Ben 
son.  Vol.  26,  pp.  320-30.  S.  ii. 

American  Almanac.  1836.  (Boston.)  pp.  305-307.  Obit 
uary. 

Sewanee  Review.  John  Marshall,  Southern  Federalist.  Vol. 
9,  p.  129. 

Longman's  Magazine.  Voyage  of  John  Marshall.  Vol.  37, 
p.  147. 

Book  Buyer.     John   Marshall's   Work  as  Diplomat  and   Lit 
terateur.     By  L.  Swift.     Vol.  20,  pp.  364-366.     June,  1900. 
REPORTS  of  cases  decided  by  the  Hon.  John  Marshall,  in  the  Cir 
cuit  Court  of  the  United  States  for  the  District  of  Virginia 
and  North  Carolina,  from  1802  to  1833,  inclusive,  edited  by 
John  W.  Brockenbrough  (with  a  memoir  by  J.  Hopkinson). 
Philadelphia:   1837.     2v.     8°.     (I.  McLean  Reports.,  555.) 
SPEECHES  in  the  Constitutional  Convention  of  Virginia.     1789. 
In  Elliot's  Debates,  Vol.  3,  pp.  229,  419,  551. 


360  BIBLIOGRAPHY 

WRITINGS  of  John  Marshall,  late  Chief  Justice,  upon  the  Federal 
Constitution.  Boston:  1839,  p.  730.  8°.  Republished. 
Washington,  1890,  p.  725. 

BENTON,  THOMAS  H.  Death  of  Chief  Justice  Marshall.  In 
"  Thirty  Years'  View."  1854.  Vol.  I,  p.  681. 

HOPKINSON,  JOHN.  "  Memoir  of  John  Marshall."  In  J.  W. 
Brockenbrough's  Reports  of  Cases  Decided  by  John  Mar 
shall.  (1837.) 

KENNEDY,  WILLIAM.     "  Life  of  Wirt."     Volume  I,  pp.  161-206. 

POTTER,  CLARKSON  N.  Marshall  and  Taney.  American  Bar 
Association  Report.  1881.  p.  175. 

VAN  SANTVOORD,  GEORGE.  John  Marshall.  "  Sketches  of  the 
Lives  of  the  Chief  Justices."  1882.  pp.  337-522. 

OBITUARY  PROCEEDINGS.  John  Marshall,  i  McLean  Reports. 
555,  30  Fed.  Cas.  1323. 

OBITUARY  PROCEEDINGS  in  United  States  Supreme  Court.  10 
Peters  Reports  VII. 

BIOGRAPHICAL  NOTICE.     30  Federal  Cases,  1385. 

SENATE  REPORT.     544.     i  Sess.,  48  Congress. 

WIRT,  WILLIAM.     "  The  British  Spy."     Letter,  99.     178-181. / 

WRITINGS  OF  JOHN  MARSHALL 

The  Constitutional  Decisions  of  John  Marshall ;  edited,  with  an 
introductory  essay,  by  Joseph  P.  Cotton,  Jr.  New  York, 
G.  P.  Putnam's  Sons,  1905.  2  vols. 

John  Marshall,  complete  constitutional  decisions,  edited,  with 
annotations  historical,  critical,  and  legal,  by  John  M.  Dillon. 
Chicago:  Callaghan  and  Co.  1903.  xi,  (i),  799  pp.  Por 
trait.  2  fold.  facs.  8. 

A  history  of  the  colonies  planted  by  the  English  on  the  continent 
of  North  America,  from  their  settlement,  to  the  commence 
ment  of  that  war  which  terminated  in  their  independence. 
Philadelphia:  A.  Small,  1824.  xv,  (9) -486  pp.  8°. 
Originally  published  as  an  introduction  to  the  author's  "  Life 
of  George  Washington." 

A  letter  of  Marshall  to  Jefferson,  1783,  by  R.  G.  Thwaites. 
(New  York?  1905)  pp.  815-817.  4°.  Cover-title.  Re 
printed  from  the  American  Historical  Review,  Vol.  X,  No. 
4,  1905. 

Letters  of  John  Marshall,  Secretary  of  State,  Aug.  23,  1800; 
Sept.  20,  1800;  Dec.  2,  4,  1800.  In  American  State  Papers. 
Foreign  Relations,  Vol.  2,  pp.  386-387,  388-389,  486-490. 
Washington,  1832.  F°. 

The  Life  of  George  Washington.     Compiled  under  the  inspection 


BIBLIOGRAPHY  361 

of   the   Hon.    Bushrod  Washington,    from   original   papers. 

Philadelphia:  C.      P.      Wayne,      1804-1807.     5      vols.     8°. 

Atlas.     4°.     Same.     2d    ed.,    rev.     Philadelphia:  Crissy    & 

Markly,  1833.     2  vols.     8°.     Atlas.     8°. 
Life  of  George  Washington.     Written  for  the  use  of  schools. 

Philadelphia,  1838.     12°. 
Het  leven  van  George  Washington,  uit  deszelfs  oorspronglijke 

papieren  onder  toezigt  van  Bushrod  Washington.     Uit  het 

Engelsch  door  J.  Werninck.     Haarlem:  A.  Loosjes,   1805- 

1809.     10  vols.  in  6.     Plates.     Maps.     8°. 

SUPPLEMENTAL 

MASSACHUSETTS  Historical  Society,  Proceedings.  Letters  from 
John  Marshall  to  Timothy  Pickering  and  Mr.  Justice  Story. 
2d  Series,  Vol.  XIV,  pp.  321-360.  Boston:  1900,  1901.  8 
vols.,  pp.  xx,  502. 

SLAUGHTER,  WM.  B.  "  Reminiscences  of  Distinguished  Men," 
with  an  autobiography.  Madison,  Wisconsin.  Published 
by  the  author.  Chapter  III,  John  Marshall,  pp.  102-124. 
Godfrey  &  Crandall,  Printers  and  Publishers,  1878. 

OPINION  of  the  Supreme  Court  of  the  United  States  at  January 
term,  1832,  delivered  by  Mr.  Chief  Justice  Marshall  in  the 
case  of  Samuel  A.  Worcester  v.  The  State  of  Georgia. 
Washington :  Printed  by  Gales  and  Seaton,  1832. 

CALENDAR  of  Virginia  State  Papers  and  other  manuscripts. 
Some  of  Marshall's  letters,  etc.,  pp.  12,  115-116,  399.  Vol. 
IX.  Richmond,  Va. :  1890.  Jan.  i,  1799,  to  Dec.  31,  1807. 
Arranged  and  edited  and  printed  under  authority  of  H.  W. 
Flourney,  Secretary  of  the  Commonwealth  and  State  Libra 
rian. 

SAME.     Vol.  7,  pp.  101-102,  120,  148,  228-229,  234-235,  347,  347- 

348,  309,  383-384,  403-404,  446,  309,  45 1- 

SAME.     Vol.  6,  pp.  546,  547,  581,  600-601. 

MARSHALL,  JOHN.  Message  from  the  President  of  the  United 
States,  transmitting  a  report  from  the  Secretary  of  State 
(John  Marshall),  with  sundry  documents  relative  to  the 
subject  of  the  resolution  of  the  24th  inst.  27  February, 
1801.  12  pp.  8°.  Same.  In  American  State  Papers,  For 
eign  Relations,  Vol.  2,  pp.  345-347.  Washington,  1832.  F°. 
Relating  to  the  treaty  of  amity  with  Great  Britain. 

MARSHALL,  JOHN.  The  writings  of  John  Marshall  upon  the 
Federal  Constitution.  Boston:  J.  Munroe  &  Co.,  1839.  xix, 
728  pp.  8°.  A  collection  of  Marshall's  Constitutional 
opinions. 


362  BIBLIOGRAPHY 

CONGRESSIONAL  DOCUMENTS  RELATING  TO  MAR 
SHALL  IN  FRANCE,  AS  ENVOY  EXTRAORDINARY 
AND  MINISTER  PLENIPOTENTIARY,  1798,  IN 
CLUDING  THE  X.  Y.  Z.  CORRESPONDENCE 

INSTRUCTIONS  to  Charles  Cotesworth  Pinckney,  John  Marshall, 
and  Elbridge  Gerry,  envoys  extraordinary  and  ministers 
plenipotentiary  to  the  French  Republic,  referred  to  in  the 
message  of  the  President  of  the  United  States  of  the  third 
instant.  Philadelphia:  Printed  by  Way  and  GrofT,  1798. 
20  pp.  12°. 

INSTRUCTIONS  to  the  envoys  extraordinary  and  ministers  pleni 
potentiary  from  the  United  States  of  America  to  the  French 
Republic,  their  letters  of  credence  and  full  powers,  and  the 
dispatches  received  from  them  relative  to  their  mission. 
Published  by  the  Secretary  of  State,  in  conformity  with  the 
resolution  of  Congress  of  the  22d  June,  1798.  Philadelphia: 
Printed  by  W.  Ross  (1798).  131  pp.  8b. 

FRANCE.  Message  from  the  President,  communicated  to  Con 
gress,  March  5,  1798.  In  American  State  Papers,  Foreign 
Relations,  Vol.  2,  pp.  150-151.  Washington,  1832.  F°. 
Transmitting  communications  from  envoys  extraordinary. 

FRANCE.  Message  from  the  President,  communicated  to  Con 
gress,  March  19,  1798.  In  American  State  Papers,  Foreign 
Relations,  Vol.  2,  p.  152.  Washington,  1832.  F°. 

MESSAGE  of  the  President  of  the  United  States  to  both  houses 
of  Congress,  April  3d,  1798.  (Philadelphia,  1798.)  71  pp. 
8°.  Same.  In  American  State  Papers,  Foreign  Relations, 
Vol.  2,  pp.  153-168.  Washington,  1832.  F°.  ^ 

MESSAGE  of  the  President  of  the  United  States  to  both  houses 
of  Congress,  May  4th,  1798.  72  pp.  8°.  Communications 
from  envoys  extraordinary.  Same.  In  American  State 
Papers,  Foreign  Relations,  Vol.  2,  pp.  169-182.  Washing 
ton,  1832.  F°. 

MESSAGE  from  the  President  of  the  United  States,  accompany 
ing  the  communications  from  the  Envoys  extraordinary  to 
the  French  Republic,  received  since  the  fourth  of  May  last. 
5th  June,  1798.  Philadelphia:  Printed  by  Way  &  Groff, 
(1798).  17  pp.  I2°. 

MESSAGE  from  the  President  of  the  United  States,  accompany 
ing  a  communication,  No.  8,  from  the  Envoys  extraordinary 
to  the  French  Republic.  Received  at  the  office  of  the  Secre 
tary  of  State  on  Thursday  the  I4th  instant.  i8th  June, 
1798.  Philadelphia:  Printed  by  Joseph  Gales,  (1798), 
72  pp.  8°. 


BIBLIOGRAPHY  363 

MESSAGE  from  the  President  of  the  United  States,  accompany 
ing  a  report  of  the  Secretary  of  State,  containing  observa 
tions  on  some  of  the  documents,  communicated  by  the 
President,  on  the  eighteenth  instant.  2ist  January,  1799. 
Philadelphia:  Printed  by  John  Ward  Fenno,  1798.  (2), 
45,  (92)  pp.  8°. 


INDEX 


INDEX 


Adams,  John  Q.,  12,  314;  made  Marshall 
Chief  Justice,  16;  diary,  349. 

Adams,   John,  letter  to,   57. 

Autobiography    of    Marshall,    197. 

v  Ambassadors,  cases  affecting,  303. 

Attainder,    bills   of,    295. 

Annul,  power  of  Court  to  annul  laws, 
305;  power  denied,  305;  power  main 
tained,  306. 

Amendment  to  Constitution,  307;  scope 
of  Eleventh,  311. 

Adoption    of    first    ten    amendments,    308. 

Address,   John    Bassett    Moore,    348. 

Austin  v.  Tenn,  doctrine  of  original 
packages,  291. 

Ambassadors,    cases    affecting,    303. 

Ambler,  John,  letter   to,    183. 


Credit,    bills   of,    296. 
Carter,    Charles,    letter   to,    47. 
Curley,   Rev.    R.    R.,   letter  to,  45. 
Chase,    Dudley,   letter  to,   80. 


Direct  taxes,   283. 

Dunning,    Professor    Wm.    A.    (preface). 

Desertion,   punishment,    229. 

Definition   of   contract,   299;   of  commerce 

decision,    347. 

Dartmouth   College   v.    Woodward,    299. 
Delegation   of    powers    of    President,    300. 
Decision    in    Gibbon   v.    Ogden,    340. 
Death  of  Marshall,   348. 
Decisions,   kernel   of   Marshall's,   280. 


Bequest  to  daughter,   200. 

Beard,   Prof.    Charles   A.    (preface). 

Bryce,    Professor,    American    institutions, 

1 1. 

Bayard,   Mr.,   226. 
Bailey,  John,   letter  to,   101. 

Bonds,   tax    on    income,    283.  T-  n,   , 

Bank,,  taxing   United  .State's,    284;    power       £ench  Jacobm  Clubs .14. 


Eulogy,    on    wife,    201;    on    Washington, 

278. 

Erb,    Mr.,    librarian    (preface). 
Extent   of  judiciary  powers,    302. 
Eleventh   Amendment,   scope,   311. 
Everett,    Edward,   letter   to,    97. 


of    Congress   to   charter,    289. 

Brown,  Mr.  Justice,  on  original  pack 
ages,  291. 

Bills  of  attainder,  295;  of  rights,  310; 
of  credit,  295;  definition  of,  296. 

Borrowing  money,  power,  289. 

Burr  trial,  Marshall  issues  subpoena  for 
President  Jefferson,  301. 

Bibliography,    350. 


Connecticut,  General  Assembly,  appoints 
agents,  213;  offered  to  make  cession 
of  Western  Territory,  217;  grants 
five  hundred  thousand  acres,  218; 
petition  for  new  colony,  223. 

Constitution,  extent  of  judicial  power 
under,  238;  amendment  to,  307;  in 
tention  of  framers,  310. 

Congress,  power  to  charter  banks,  284, 
289;  implied  powers  of,  313. 

Contract,  obligation  of,  297;  definition 
of,  299;  obligation  defined,  300. 

Case,  what  is  a,  302;  affecting  Ambas 
sadors,  303;  passenger,  341. 

Commerce,  more  than  traffic,  340;  powers 
defined,  342 ;  navigation,  344. 

Corporations,    origin  of,    290. 

Clay,  Henry,  letters  to,  41,  42,  43. 


Free   Masonry,   Opinion   by   Marshall,    97. 
Fitch,   Lieut. -Governor,   letter,    222. 
French   Republic,   first   minister,    228. 
Fletcher   v.    Peck,    295. 
Framers     of     Constitution,     intention     of, 
310. 


Genet,    14,   228. 
Gallatin,    Mr.,   227. 

Government,  general  objects,  257;  of  ter 
ritories,  307. 

Goodnow,    Prof.    Frank   J.    (preface). 
Guthrie,  Prof.   Wm.   D.   (preface). 
Gibbons  v.   Ogden,  decision,  340. 
Gallatin,   Albert,    letter  to,    38. 

H 

Henry,  Patrick,  gloomy  predictions,  1 1 ; 
led  attack  on  Constitution,  13;  op 
posed  by  Marshall,  253. 

Habeas  Corpus,  the  privilege  of  the  writ 
shall  not  be  suspended,  294. 

Hamilton,  Alexander,  letters  to,  90,  92, 
93- 


367 


Isle   of   Wight,    21. 


368 


INDEX 


Independence  of  Judiciary,  281-2;  im 
plied  powers  of,  282. 

Inspection   laws,    state,    292. 

Implied  powers  of  Congress,   313. 

Implied  powers,  nothing  in  the  Constitu 
tion  which  excludes  the  exercise,  282. 

Iredell,   James,   letter   to,   44. 


Jefferson,    Thomas,    relation    to    Marshall, 

16;     Marshall    issues    subpoena,     301; 

enraged    at    decision,    316;    letters    to, 

J6,    181,    182. 
John    Fae    (preface). 
Jurisdiction,   at  sea,   229;   in  controversies 

between  a  state   and  a   foreign  state, 

Judicial  power,  extension  to  all  cases  of 
admiralty  and  maritime  jurisdiction, 
240,  302. 

Jurors,    right   of  challenging,   274. 

Judiciary,   independence  of,   281-2. 

Judson    on    original    packages,    290. 


King,    Rufus,    letters    to,    65,    68,    70,    79, 
83,    84. 


Laws,  state  inspection,  292;  quarantine, 
*93;  power  of  court  to  annul,  305. 

Legislature,  Maryland,  290;  Connecticut, 
217. 

Letters    from    Marshall    to    John    Adams, 

Ambler,   John,    183. 

Bailey,    John,    101. 

Clay,   Henry,   41,    42,   43. 

Carter,    Charles,    47. 

Curley,    Rev.    R.    R.,   45- 

Chase,    Dudley,    80. 

Everett,    Edward,    97. 

Gallatin,    Albert,    38. 

Hamilton,    Alexander,    90,    92,    93. 

Iredell,    James,    44. 

Jefferson,    Thomas,    86,    181,    182. 

King,    Rufus,   65,   68,   70,   79.   83,    84. 

Leigh    Dinner    Committee,    171. 

Lee,    Arthur,    40. 

Monroe,     James,      58,     176,     178,     179, 

1 80. 

Madison,    James,    178. 
Marshall,    James    Keith,    61,    62. 
Grandson,    61,   65. 
Pickering,    Timothy,    189. 
Pickering,    Col.,    94. 
Quincy,   Josiah,   36,   37. 
Sitgreaves,    Samuel,    77. 
Soderstrom,    Richard,    82. 
Stuart,    Judge,   64. 
Spaulding,    James  H.,    190. 
Story,    Joseph,    96,     103,    104,     105,     106, 

107,     109,     no,    in,     112,     114,     117, 

119,       121,       122,       124,      126,      128,       129, 
130,       132,      133,       136,       138,      140,       142, 

147,     148,     150,     151.    152, 
To   unknown    person,    171. 
Washington,    George,    52,    53,    154,    163, 

166,    169,    172,    173,    174,    176,    177. 


Wood,    James,   20. 

Washington,    Bushrod,    49,    50. 

Webster,    Daniel,     184,     185,     186,    187. 

Wilkinson,  James,    88. 

President    of    United    States,    69,    70. 

Governor    of    Virginia,    21,    23,    27,    29. 

Governor   St.    Clair,    35. 

Relating  to   public  grant,   31. 

Public    Guard,    32. 

Phoenix,    32. 

Information    of    appointment    of    Secre 
tary   of    State,    34. 

Rescue,    Logrood,    34. 

Letter  shows  declination  to  act  for  Com 
monwealth  v.  Martin's  Heirs,  33. 

Relating   to    Phoenix,    32. 

Fears    of    Negro    insurrection,    31. 

To    Jphn    Marshall    from    Governor    St. 
Clair,    35. 

Jefferson,    Thomas,    195. 

Story,    Joseph,    193. 

Washington,    George,    193. 
Leigh,    Dinner    committee,    letter   to,    171. 
Lee,   Arthur,    letter   to,    40. 

M 

f  Marbury    v.    Madison,    301-313. 

Moore,  John  Bassett,  address,  extract, 
348  (preface) 

Money,    power    of   borrowing,    289. 

Maryland    Legislature,    290. 

Masonry,    opinions   in    letters,    97. 

Murnen,    Arthur    (preface). 

McGeever,    John    A.    (preface). 

Marshall,  Chief  Justice,  never  sought 
public  station,  13;  elected  to  Legis 
lature,  13;  State  suit,  14;  became 
conspicuous,  14;  makes  hazardous 
experiment,  15;  Adams  made  Mar 
shall  l  Chief  Justice,  16;  solidified 
Union,  16;  related  to  Jefferson,  16; 
woman  suffrage,  17;  opinion  of  sale 
of  land  for  taxes,  25;  opinion  on 
fines  by  military  laws,  26;  opinion  on 
sheriff's  commission,  27;  memorial  to 
Governor  of  Virginia,  30. 

Marshall,  James  Keith,  letters  to,  61,  62. 

Monroe,  James,  letters  to,  58,  176,  178, 
179,  180. 

Maury,  Hon.  Wm.  A.,  shows  relation  of 
Jefferson  and  Marshall,  16. 

Madison,    James,    letter    to,    178. 
.McCulloch   v.    Maryland,    280. 


N 

Nash,   Thomas,   226;   impressed  American, 

252. 

Naturalization,   294. 
Newshafer,   M.    C.    R.,    (preface). 


Opinion,  on  sheriff's  commission,  27;  on 
sale  of  land  for  taxes,  25 ;  on  sale 
of  Craig's  Land,  28;  concerning 
Free  Masonry,  97. 

Owner   of   slaves,   201. 

Ohio,   209. 

Original  packages,  290;  Judson  on,  290; 
not  defined,  291. 


INDEX 


369 


Obligation     of     Contracts,     297;     defined, 

Original    jurisdiction,    of    Supreme    Court, 

303. 
Osborn  v.   Bank  of  United  States,   312. 


Public   lands.   Marshall   on.    205. 

Plymouth   Council,    212. 

Pennsylvania    Legislature,    215. 

Pirates   under   laws   of    Nations,    230. 

Preamble,  formation  of  the  United  States 
Constitution,  280. 

Powers,  implied,  282;  of  states  to  de 
stroy  Government,  283;  of  Congress 
to  charter  bank,  289;  of  President, 
300;  extent  of  judicial.  302;  of 
courts  to  annul  laws,  305;  power 
denied,  305;  maintained,  386;  im 
plied  of  Congress,  313. 

Packages,   original,   290. 

Passenger   Cases,   341. 

Pickering,    Timothy,    letter    to,    189. 

Pickering,    Col.,    letter  to,    94. 


Quebec,   209. 

quarantine   laws,   293. 

Juincy,  Josiah,  letters  to,  36,  37. 


Religious   tests,   308. 

Read,    Mr.,    on    Western    Reserve,    2*1. 


Supreme  Court,  coordinate  department  of 
government,  n. 

Story,  Joseph,  12;  lines  on  Marshall, 
119;  letters  to,  96,  103,  104,  106, 
107,  109,  no,  in,  H2,  114,  117, 

119,      121,      122,      124,      126,      128,      129, 

130,    132,    133,    136,    138,    140,    142, 
147,   148,    150,   151,   152. 

Suffrage,   17. 

Sinclair,    Capt.,    24. 

Slaves,  owner  of,   201. 

Speeches,  by  Marshall,  225,  to  U.  S. 
House  of  Rep.,  225;  urging  ratifi 
cation  of  the  Constitution,  253;  to 
Virginia  Convention,  June  28,  1788, 


on  Constitution,  267;  eulogy  on 
death  of  Washington,  278. 

Suits   against  states,   282. 

States,  power  to  destroy  government, 
283;  inspection  laws,  292;  bills  of 
credit,  295;  party  to  suit,  312;  when 
it  is  a  party,  312. 

Supreme   court,   original  jurisdiction,   303. 

Senators,  if  not  elected  destroy  govern 
ment,  283. 

Sovereignty    of    states,    extent,    285. 

Spaulding,    letter    to,     190. 

Stuart,   Judge,   letter  to,    64. 

Soderstrom,  Richard,  letter  to,  82. 

Sitgreaves,   Samuel,   letter  to,   77. 


Trenton,    welcome    to    Washington,    17. 
Tribute   to   Marshall,    by    Story,    17. 
Tax,    laid    with    information,    261;    direct, 

283 ;    on    income    from    bonds,    283 ; 

United    States   banks,    284. 
Treason,    304- 

Territories,    government  of,   307. 
Tests,   religious,   308. 
Taney,    Roger   B.   succeeds  Marshall,   349. 

U 
United    States   Bank,   taxing  of,    284. 


Von   Hoist,   quotes  J.    Q.    Adams,    12. 
Virginia  Convention.    13. 

W 

Waite,  C.  J.,  n. 

Wood,   James,    letter  to,   20. 

War,  levying  of,   304;   danger,  260. 

Wilkinson,   James,   letter  to,   88. 

Washington,  George,  criticised  in  Vir 
ginia,  14;  makes  himself  a  king,  15; 
letters  to,  52,  53,  154,  163,  166,  169, 
172,  173,  174,  176,  177;  speech  on 
death  of,  278. 

Washington,    Bushrod,   letters   to,   49,    50. 

Wilson,  Woodrow,  Columbia  lectures 
(preface). 

Wife,    eulogy    on,    201. 

Will   of   Marshall,    199. 

Western   Reserve,   221. 

Webster,  Daniel,  letters  to,  184,  185,  186, 
187. 


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